Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that: (i) no Incremental Revolving Commitment may be less than $5,000,000, (ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender; (iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger; (iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees); (v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates; (vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and (vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time. (b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender. (c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof: (A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and (B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied. (i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e). (f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22. (g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 3 contracts
Sources: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hillman Companies Inc)
Incremental Credit Extensions. (a) The Lead Borrower may, Borrowers may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice from the Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase ), request one or more increases in the aggregate amount of Commitments of any existing Class of the Revolving Credit Commitments (any each such increase, an a “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansCredit Commitment Increase”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
that both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below (i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents Article V shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though (except where such representations and warranties had expressly relate to an earlier date, in which case such representations and warranties shall have been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such earlier date or for such period; provided, further, and except to the extent that any a particular representation or warranty that is already qualified as to “by materiality,” “Material Adverse Effect” , in which case such representation or similar language warranty shall be true and correct correct), (after giving effect to any qualification thereinii) in all respects on such respective dates;
no Default or Event of Default shall exist or would result therefrom and (viiii) the proceeds aggregate principal amount of any Incremental all Revolving Facility may be used for working capital, general corporate purposes and any other purpose Credit Commitment Increases shall not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timeexceed $50,000,000.
(b) Incremental Each Revolving Commitments Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $500,000 which 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 Section 2.08(a)(iii) above).
(c) The Revolving Credit Loans made pursuant to the Revolving Credit Commitment Increases (a) shall be made under and documented in this Agreement or pursuant to an amendment hereto and shall rank pari passu in right of payment and of security with the Revolving Credit Loans and (b) shall be treated substantially the same as or less favorably than the Revolving Credit Loans (including with respect to mandatory and voluntary prepayments and voting rights).
(d) Each notice from the Borrowers pursuant to this Section 2.08 shall set forth the requested amount and proposed terms of the relevant Revolving Credit Commitment Increases. Revolving Credit Commitment Increases may be provided by any existing Lender, Lender or by any other lender (bank or other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) financial institution selected by the Borrowers (any such bank or other lender financial institution being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving such Lender’s provision of Incremental or Additional Lender’s providing any such Revolving Commitments Credit Commitment Increases if such consent would be required under Section 9.05(b) 11.06 for an assignment of Revolving Loans Commitments to such Additional Revolving Lender.
(c) Each Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Credit Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrowers, each Lender providing a portion agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any Incremental Revolving Commitment shall execute other Lenders, effect such amendments to this Agreement and deliver to the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower all such documentation (including Borrowers, to effect the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitmentprovisions of this Section 2.08. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the The effectiveness of any Incremental Revolving Facility or Amendment shall be subject to the making of any Incremental Revolving Loans, satisfaction on the date thereof (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lendereach, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative QuestionnaireIncremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 and such other documents conditions as it the parties thereto shall reasonably and customarily require from such Additional Revolving Lender, (iii) agree. The Borrowers will use the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate proceeds of the applicable Borrower signed Revolving Credit Commitment Increases for any purpose not prohibited by a Responsible Officer thereof:
(A) certifying and attaching a copy of this Agreement. No Lender shall be obligated to provide any Revolving Credit Commitment Increases, unless it so agrees. Upon each increase in the resolutions adopted by the governing body of the applicable Borrower approving or consenting Revolving Credit Commitments pursuant to such Incremental Revolving Facility or Incremental Revolving Loansthis Section 2.08, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Credit Commitment Increase (each, a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each relevant Incremental such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Lender (including each such Revolving Credit Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment and (b) if, on the date of such Class (including increase, there are any Revolving Credit Loans outstanding, the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving FacilityAdditional Lenders) shall purchase make such payments as directed by the Administrative Agent in order that the Revolving Loans, in each case to the extent necessary so that all of Credit Loans are held by the Lenders of such Class participate (including Additional Lenders) ratably in each outstanding borrowing of accordance with the increased Revolving Loans pro rata on Credit Commitments (and interest and other payments shall be adjusted accordingly).
(e) The Administrative Agent and the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)Section 2.08.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.08 shall supersede any provision provisions in Section 2.18 2.14, 2.15 or 9.02 11.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 3 contracts
Sources: Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (i) pursuant to an one or more additional tranches of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”) or (ii) one or more increases in the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments Facility (any each such increase, an a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (A) no Default or Event of Default shall exist and (B) the Borrower shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; provided that:
less than $25 million (i) no Incremental Revolving Commitment provided, that such amount may be less than $5,000,000,25 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount.
(b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (i) shall have the same guarantees as, and rank pari passu or junior in right of payment and of security with, the Revolving Credit Loans and the Term Loans (provided, that any junior Liens on the Collateral incurred pursuant to any such Incremental Term Loans shall be subject to a Second Lien Intercreditor Agreement), (ii) except shall not mature earlier than the Maturity Date with respect to the Term Loans, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (iv) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (v) shall bear interest at rates and be entitled to upfront fees as separately agreed from time to time between shall be determined by the Lead Borrower and the applicable new Lenders; provided, however, that if the All-In Yield for any Incremental Term Loans shall exceed the All-In Yield with respect to the then-outstanding Term Loans by more than 50 basis points, then the interest rate margins applicable to such Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by the Borrower; provided that, to the extent such terms and documentation are not consistent with the Term Facility (except to the extent permitted by clauses (i) through (v) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and subject to clauses (ii) and (iii) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by the Borrower and the lenders thereof.
(c) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and 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 the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, no an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as the Borrower and the applicable Lenders and Additional Lenders shall agree. The Borrower may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility Term Loans or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan)Increases, the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreementso agrees.
(d) As a condition precedent Upon each increase in the Revolving Credit Commitments pursuant to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loansthis Section 2.14, (ia) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Credit Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Class Facility outstanding, such Revolving Credit Loans shall assign on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of Revolving Credit Loans to certain other be made by the Revolving Commitment Increase Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so and such that all the percentage of the aggregate outstanding Revolving Credit Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders of represented by such Class participate Revolving Credit Lender’s Revolving Credit Commitment (reflecting such increase in each outstanding borrowing of Revolving Loans pro rata Credit Commitments), which prepayment shall be accompanied by accrued interest on the basis of their respective Commitments of such Class (after giving effect to Revolving Credit Loans being prepaid and any increase reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(ge) Notwithstanding anything to the contrary in this Section 2.22 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any other provision of any Loan Document, if Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the proceeds conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on the date of a “certain funds” basis.
(f) The effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to customary “SunGard” or reflect any Incremental Term Loans provided on a “certain funds” conditionalitybasis) and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Incremental Credit Increase is provided with the benefit of the applicable Loan Documents.
(hg) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 3 contracts
Sources: Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Corp)
Incremental Credit Extensions. (a) The Lead At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request to add one or more tranches of term A loans (the “Incremental Term A Loans”) pursuant to an or term B loans (the “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to increase any Specified Transaction consummated in connection therewith, the Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitment, (B) the aggregate amount of Commitments the Mission Revolving Credit Commitment, (C) all Incremental Facilities consisting of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” Commitments and the loans thereunderIncremental Term A Loans, “and (D) Mission Incremental Facilities consisting of Mission Incremental Revolving Commitments and Mission Incremental Term A Loans”, shall not exceed $150,000,000.
(b) in an aggregate principal amount not The Incremental Facilities are subject to exceed the Incremental Cap; provided thatfollowing terms and conditions:
(i) no each Incremental Revolving Commitment may Facility shall have the same guarantees as, and be less than $5,000,000,secured on a pari passu basis by the same Collateral securing, the Obligations hereunder;
(ii) except as separately agreed from time no existing Lender will be required to time between the Lead Borrower and participate in any Lender, no Lender shall be obligated to provide any such Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such LenderFacility without its consent;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arrangerDefault would exist after giving effect thereto;
(iv) the terms maturity date of each any such Incremental Revolving Facility will Term B Loans (including any Refinancing Term Loans) shall be substantially identical no earlier than the Maturity Date of the Term B Loans and the Weighted Average Life to those applicable Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees)Term B Loans;
(v) except as otherwise agreed by in the lenders providing the relevant case of Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementCommitments, (A) the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no Event of Default shall exist immediately scheduled amortization or mandatory commitment reduction prior to or after giving effect the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility;
(vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility and shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with the same effect Revolving Credit Facility;
(vii) the interest rate margins, the maturity date of any Incremental Term A Loans and (subject to clauses (iv) and (vi) above, as though such representations appropriate) amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Facilities shall be determined by the Borrower and warranties had been made on and as of such datethe lenders thereunder; provided that in the event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that is incurred on or prior to the date that is 18 months after the Closing Date are higher than the interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that any representation and warranty specifically refers such interest rate margins are equal to a given date or period, it shall be true and correct in all material respects as of such date or the interest rate margins for such periodIncremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any representation Incremental Term A Loans, Incremental Term B Loans or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language Incremental Revolving Facility shall be true excluded, (B) original issue discount (“OID”) and correct upfront fees paid to the lenders thereunder shall be included (after giving with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to any qualification therein) in all respects on the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased to the extent of such respective datesdifferential between interest rate floors;
(viviii) any Incremental Term A Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the proceeds Term B Loans;
(ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans;
(x) any Incremental Term Loans or any Incremental Revolving Facility shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (iv), (vi), (vii), (viii) and (ix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and
(xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Facilities or Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”)Commitments; provided that such amount may be less than the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments applicable minimum amount if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderamount represents all the remaining availability hereunder as set forth above.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Revolving Lender”) and, if not already a Lender, shall become a Lender providing a portion under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Intermediate Parent, the Ultimate Parent, the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Revolving Commitment Facilities shall execute and deliver become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lead Borrower Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all such documentation (including references to “the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender Credit Extension” in Section 4.02 shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent be deemed to refer to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requireClosing Date, (ii) the Administrative Agent Incremental Facility Closing Date shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided be deemed to such Additional Revolving Lender by be the Administrative Agent (the “Administrative Questionnaire”initial Credit Extension for purposes of Section 4.02(a) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicablethe proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, certifying that the condition set forth conditions in clause Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of any Incremental Term Loans and Incremental Term Loan Increases will be used only for general corporate purposes (a)(v) above has been satisfied.
(i) Each including Permitted Acquisitions). Upon each increase in the Aggregate Commitments pursuant to this Section, each Revolving Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Lender providing a portion of the Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each relevant such Incremental Revolving Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving Lender) participations hereunder in US Letters will equal the percentage of the aggregate Revolving Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) all Revolving Credit Lenders represented by such Revolving Credit Lender’s Commitment. The Administrative Agent and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Incremental Credit Extensions. (a) The Lead Borrower mayAt any time and subject to the terms and conditions of this Section 2.19, at any time, on the Company may request (i) one or more occasions deliver tranches of term loans (the “Incremental Term Loans”) and/or (ii) one or more increases in the Aggregate Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase”) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) but without the consent of any Lender not providing such Incremental Term Loans or Revolving Credit Commitment Increases, as the case may be; provided that the aggregate amount of all Incremental Term Loans and Revolving Credit Commitment Increases made during the term of this Agreement shall not exceed the Dollar Equivalent of $250,000,000. Any tranche of Incremental Term Loans (A) shall be available to the Company in Dollars and (B) shall rank pari passu in right of payment and security, if any, with the Revolving Credit Loans, (C) shall not mature earlier than the Revolving Facility Termination Date (but may have amortization prior to such date, may be required to be mandatorily prepaid in full or in part prior to prepayment of the Revolving Credit Loans, and may permit voluntary prepayments thereof) and (D) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Loans; provided that (1) the terms and conditions applicable to the pricing, fees, amortization and mandatory prepayments regarding any tranche of Incremental Term Loans may differ from those applicable to Revolving Credit Loans.
(b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in a minimum amount of $25,000,000 and integral multiples of $5,000,000. A commitment to make Incremental Term Loans shall become an “Incremental Term Loan Commitment” under this Agreement, and a commitment to participate in a Revolving Credit Commitment Increase shall become a “Revolving Credit Commitment” (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s Revolving Credit Commitment) under this Agreement, in any such case, pursuant to a “Commitment and Acceptance” substantially in the form of Exhibit I (a “Commitment and Acceptance”). Any request for a tranche of Incremental Term Loans or a Revolving Credit Commitment Increase shall be made in a written request notice (an “Increase Notice”) given to the Administrative Agent by the Company not less than ten Business Days (whereupon or such shorter period agreed to between the Administrative Agent and the Company) prior to the proposed effective date therefor, which Increase Notice shall promptly deliver a copy of such request to each specify the amount of the Lendersproposed tranche of Incremental Term Loans or the Revolving Credit Commitment Increase, as the case may be, and the proposed effective date thereof. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution or other Person engaged in the business of making commercial loans (any such other bank or other financial institution or other Person, a “Proposed New Lender”) pursuant as determined by the Administrative Agent and the Company; provided that any Proposed New Lender in the case of a Revolving Credit Commitment Increase shall be consented to an by the Issuer (such consent not to be unreasonably withheld conditioned or delayed). The Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the Revolving Facility Amendment to increase Credit Commitment Increase, of the amount of each Lender’s and Proposed New Lender’s Incremental Term Loan Commitment or new or increased Revolving Credit Commitment, as applicable, and the resulting aggregate amount of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the amount of the Aggregate Revolving Credit Commitments, as the case may be, which amount shall be effective on the following Business Day, subject to the satisfaction of the conditions described in clause (c) below.
(c) Without limiting the applicability of any existing Class conditions to Advances set forth in this Agreement, the effectiveness of any tranche of Incremental Term Loan Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “corresponding availability of the related Incremental Term Loans) and the effectiveness of each Revolving Loans”) in an aggregate principal amount not Credit Commitment Increase shall be subject to exceed the Incremental Cap; provided thatfollowing conditions precedent:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between As of the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion proposed effective date of such Lender;
Incremental Term Loan Commitments (iii) no and related Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respectTerm Loans) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementCredit Commitment Increase, (Ax) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the all representations and warranties of the Loan Parties set forth in this Agreement under Article V and the other Loan Documents shall be true and correct in all material respects as though made on and such date (except with respect to any representation or warranty expressly stated to have been made as of the a specific date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had which shall have been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such specified date), (y) no event shall have occurred and then be continuing which constitutes an Unmatured Default or a Default and (z) the Company shall have demonstrated to the Administrative Agent’s reasonable satisfaction that, as of the proposed effective date of the Revolving Credit Commitment Increase or for such period; providedIncremental Term Loan Commitments, furtheras the case may be, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) thereto, the Company and its Subsidiaries are in all respects compliance on a pro forma basis with the covenants contained in Sections 6.17 and 6.18 recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available, as if such respective datesRevolving Credit Commitment Increase or Incremental Term Loan Commitments, as applicable, had been effective as of the first day of each relevant period for testing such compliance;
(viii) the proceeds Borrowers, the Administrative Agent and each Proposed New Lender or Lender that shall have agreed to provide a “Commitment” in support of such Incremental Term Loans or Revolving Credit Commitment Increase shall have executed and delivered a Commitment and Acceptance;
(iii) counsel for the Borrowers and the Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the Borrowers, the Guarantors and the Proposed New Lenders shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Administrative Agent shall have reasonably requested in connection with such increase (including, in the case of a tranche of Incremental Term Loans, an amendment to, or amended and restatement of, this Agreement and, as appropriate, the other Loan Documents (an “Incremental Term Loan Amendment”), executed by the Borrowers, each Lender agreeing to provide such Incremental Term Loans, if any, each Proposed New Lender, if any, and the Administrative Agent, which amendment or amendments may, without the consent of any Incremental Revolving Facility other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be used for working capitalnecessary or appropriate, general corporate purposes in the reasonable opinion of the Administrative Agent, to effect such Incremental Term Loans in accordance with this Section 2.19), and any other purpose not prohibited by this Agreementeach Loan Party shall have reaffirmed its obligations, and the Liens granted, under the Loan Documents; and
(viiv) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental the case of a Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Credit Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable requestIncrease, the Administrative Agent shall have received customary written opinions administered the reallocation of counselthe Aggregate Revolving Credit Outstandings on the effective date of such increase ratably among the Revolving Lenders (including new Lenders) after giving effect to such increase; provided, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, that (ii1) the Administrative Agent shall have receivedBorrowers hereby agree to compensate the Lenders for all losses, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving expenses and liabilities incurred by any Lender by in connection with the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require sale or assignment of any Eurocurrency Loan resulting from such Additional Revolving Lenderreallocation on the terms and in the manner set forth in Section 3.3, and (iii2) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 reallocations effected pursuant to this clause (ev).
. Upon satisfaction of the conditions precedent to any tranche of Incremental Term Loans or Revolving Credit Commitment Increase, the Administrative Agent shall promptly advise the Company and each Lender of the effective date thereof (f) The Lenders hereby irrevocably authorize each such amendments effective date, an “Increase Effective Date”). Upon any Increase Effective Date that is supported by a Proposed New Lender, such Proposed New Lender shall become a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or other Loan Documents as may be necessary in order requirement on the part of any Lender to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving make Incremental Term Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22increase its Revolving Credit Commitment at any time.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement and Guaranty (Diebold Inc), Credit Agreement (Diebold Inc)
Incremental Credit Extensions. (a) The Lead U.S. Borrower may, may at any timetime or from time to time after the Syndication Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such Agent, request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Available Incremental Cap; provided that:
Amount (isuch amount not to include loans which constitute Permitted Refinancing Indebtedness of the Loans hereunder) no (x) one or more additional tranches or additions to the A Term Loans or B Term Loans (the “Incremental Term Loans”) or (y) one or more additional tranches or increases in the amount of the Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time Loan Commitments on similar terms to time between the Lead Borrower terms of the Revolving Loan Commitments and any Lender, no Lender shall be obligated other Extended Revolving Commitments (unless otherwise consented to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), by the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
except for (ivx) the terms tenor of each Incremental such additional tranches or increases (which shall have a scheduled expiration date no earlier than the 2017 Revolving Facility will be substantially identical to those Loan Maturity Date) and (y) the applicable to the Revolving Facility interest rates, interest margins, rate floors, premiums, funding discounts and fees payable (other than the Commitment Commission and any similar fee) with respect to such additional tranches or increases (in each case which shall be as specified in the applicable Incremental Amendment) (the “Revolving Commitment Increase”, and, together with the Incremental Term Loans, collectively, the “Incremental Loans”); provided that notwithstanding anything to the contrary contained in this Section 2.14(a), the Borrower shall always have the right to add additional tranches or increase the Revolving Loan Commitments so that after giving effect thereto the Total Revolving Loan Commitment is $375,000,000 (subject to (x) satisfaction of the requirements of the immediately succeeding proviso (y) treating any upfront feesPermitted Refinancing Indebtedness of Revolving Loan Commitments as Revolving Loan Commitments for purposes hereof); and provided further that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, original issue discount no Default or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Default or Event of Default shall exist, (ii) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to such Incremental Revolving Facility and (B) below, all of the representations and warranties of the Loan Parties each Credit Party set forth in this Agreement Section 8 and the in each other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it Credit Document shall be true and correct in all material respects as of such date or for time (except to the extent such period; providedrepresentations and warranties expressly relate to an earlier date, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language in which case they shall be true and correct (after giving effect to any qualification therein) in all material respects as of such earlier date), (iii) all Incremental Loans (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 guaranteed under the Guaranty, on such respective dates;
a pari passu basis with all other Obligations of the U.S. Borrower under this Agreement secured by the Security Documents and guaranteed under the Guaranty, (viiv) the proceeds U.S. Borrower shall be in compliance with the financial covenant set forth in Section 10.08 (whether or not then in effect) determined on a Pro Forma Basis as of any the date of the most recently ended Test Period (or, if no Test Period cited in Section 10.08 has passed, the covenant in Section 10.08 for the first Test Period cited in such Sections shall be satisfied as of the last four quarters ended), in each case, as if such Incremental Term Loans or Loans pursuant to the Revolving Facility may be used Loan Commitment Increase, as applicable, had been outstanding on the last day of such fiscal quarter of the U.S. Borrower for working capital, general corporate purposes testing compliance therewith and any other purpose not prohibited by this Agreement; and
(viiv) at no time shall there be more than three five separate Maturity Dates in effect with respect to Incremental tranches of Revolving Facilities and any other Additional Revolving Facility at any timeLoan Commitments.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Term Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) that are added to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender existing tranche of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline A Term Loans or B Term Loans, as applicable, shall have identical terms to such existing tranche of Term Loans. All other Incremental Term Loans shall rank pari passu in right of payment and of security with the Loans; provided, however, that (i) the interest rate applicable to the Incremental Term Loans may differ from that applicable to the existing Loans, but if the “effective yield” applicable to a given tranche of Incremental Term Loans (which, for such purposes only, shall be held on a pro rata basis deemed to take account of any interest rate benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (x) the weighted average life of such loans and (y) four years) payable to all Lenders providing such Incremental Term Loans and the effect of any LIBO Rate or Base Rate floors, in each case as determined by the Administrative Agent, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Term Loans) determined as of the initial funding date for such Incremental Term Loans exceeds the “effective yield” then applicable to any Loans or any other tranche of Incremental Term Loans (determined on the same basis as provided in the preceding parenthetical) by more than 0.50% (the amount of their respective Commitments such excess being the “Yield Differential”), the Applicable Margin for such existing Loans subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and Incremental Term Loans, (ii) the existing Lenders final stated maturity date for a given tranche of Incremental Term Loans may be later (but not sooner) than the latest of the applicable Class shall assign A Term Loan Maturity Date, B Term Loan Maturity Date and 2017 Revolving Loan Maturity Date, (iii) the amortization requirements for a given tranche of Incremental Term Loans may differ, so long as the average weighted life to certain other Lenders maturity of such Class (including Incremental Term Loans is no shorter than the Lenders providing average weighted life to maturity applicable to the relevant Incremental Revolving Facility)then outstanding B Term Loans, and such (iv) the other Lenders (including the Lenders providing the relevant terms of a given tranche of Incremental Revolving Facility) shall purchase such Revolving Loans, in each case Term Loans may differ if reasonably satisfactory to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)Administrative Agent.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Walter Energy, Inc.), Credit Agreement (Walter Energy, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to (i) add one or more new tranches of term facilities and/or increase the aggregate principal amount of Commitments the Loans of any existing Class of Commitments by requesting new commitments to provide such Loans (any such new tranche or increase, an “Incremental Revolving Term Facility” and the any loans thereundermade pursuant to an Incremental Term Facility, “Incremental Revolving Term Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Term Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Term Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) except as otherwise permitted herein, the terms of each any Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Loans) must be substantially consistent with those applicable to any then-existing Loans or otherwise reasonably acceptable to the Administrative Agent,
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility that is pari passu with the Initial Term Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50%,
(vi) the final maturity date with respect to any upfront fees, original issue discount or similar fees);Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date at the time of incurrence thereof,
(vvii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Loans (without giving effect to any prepayments thereof),
(viii) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to any then-existing tranche of Loans in right of payment or security and documented in a separate agreement, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(A) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Loans shall be made on a pro rata basis with such existing Loans and (B) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are subordinated in right of payment or security with any existing Loans shall be made on a junior basis with respect to such existing Loans, except as otherwise agreed by that the Borrower and the lenders providing the relevant Incremental Revolving Facility Term Loans shall be permitted, in connection with their sole discretion, to elect to prepay or receive, as applicable, any acquisitionsuch prepayment on a less than pro rata basis (but not on a greater than pro rata basis),
(x) subject to Section 2.23(f), investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialityFacility,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixi) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and other general corporate purposes (including Acquisitions, investments and Restricted Payments) and any other purpose use not prohibited by this Agreement; , and
(viixii) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding Eurodollar Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing LenderLender (in its sole discretion), or by any other lender Eligible Assignee (other than any Disqualified an Ineligible Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b9.04(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Term Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) Questionnaire and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received be entitled to receive all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Term Loans, (iv) subject to Section 2.23(f), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 or another written request, the form of which is reasonably acceptable to the Administrative Agent and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Financial Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Term Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(x) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended Commitments pursuant to this Section 2.22 2.23 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.222.23.
(gf) Notwithstanding anything to the contrary in this Section 2.22 2.23 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionalityconditionality (it being understood that availability of such Incremental Facility shall nevertheless be subject to the absence of an Event of Default under clauses (a), (h) or (i) of Article VII and customary “specified” and “acquisition agreement” representations).
(hg) This Section 2.22 2.23 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.), Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to add one or more new Classes of term facilities and/or increase the aggregate principal amount of Commitments the Term Loans of any existing Class of Commitments by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Revolving Facility” and the any loans thereundermade pursuant to an Incremental Facility, “Incremental Revolving Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided provided, that:
(i) no Incremental Revolving Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent (acting at the direction of the Required Lenders) may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments any Incremental Commitment shall be within the sole and absolute discretion of such Lender;; provided, that (A) so long as the Initial Lenders and their respective Affiliates, collectively, hold at least 50.1%, but none of such Initial Lenders, together with its respective Affiliates, individually hold at least 50.1%, in each case, of the then outstanding Term Loans at the time the Borrower elects to implement any Incremental Facility, prior to entering into definitive documentation with respect to any Incremental Facility, the Borrower shall have first provided the Initial Lenders with a reasonable opportunity to collectively propose terms with respect to such Incremental Facility or (B) so long as BXCI holds at least 50.1% of the then outstanding Term Loans at the time the Borrower elects to implement any Incremental Facility, prior to entering into definitive documentation with respect to any Incremental Facility, the Borrower shall have first provided BXCI with a reasonable opportunity to propose terms with respect to such Incremental Facility (it being understood that if the Borrower does not elect to pursue any Incremental Facility on the terms initially offered by any Initial Lenders or their affiliates pursuant to this clause (ii), the Borrower shall not be required to make any subsequent offer to such Initial Lenders or their Affiliates),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental Facility, may not be materially more favorable (taken as a whole) to the relevant Incremental Lenders than the terms of the Initial Term Loans, unless such terms are acceptable to the Administrative Agent (unless its rights acting at the direction of the Required Lenders, acting reasonably)) (it being agreed that any terms contained in such Incremental Facility that are (x) applicable only after the then-existing Latest Maturity Date, (y) more favorable to the lenders or the agent of such Incremental Facility than those contained in the Loan Documents and interests are adversely affected then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment and/or (z) consistent with current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith), shall, in each case, be deemed acceptable to the Administrative Agent (acting at the direction of the Required Lenders)) and (B) any material respect) Incremental Facility that consists of Customary Term A Loans may include one or more financial maintenance covenants that do not apply for the benefit of any other agent or arranger;Lender that does not hold such Customary Term A Loans,
(ivv) the terms of each Effective Yield (and the components thereof) applicable to any Incremental Revolving Facility will shall be substantially identical determined by the Borrower and the lender or lenders providing such Incremental Facility; provided, that (A) the Effective Yield applicable to those any Incremental Facility that constitutes MFN Indebtedness may not be more than 0.50% higher than the Effective Yield applicable to the Revolving Initial Term Loans, unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility and (B) any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Term SOFR floor on any Incremental Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or Term SOFR floor applicable to such Initial Term Loan (this proviso, the “MFN Provision”),
(vi) the final maturity date with respect to any Incremental Loans (other than Customary Bridge Loans or Customary Term A Loans) shall be no earlier than the Latest Maturity Date,
(vii) the Weighted Average Life to Maturity of any Incremental Facility (other than Customary Bridge Loans or Customary Term A Loans) shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing Class of Term Loans,
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility,
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) any Incremental Facility may rank pari passu with or junior to any then-existing Class of Term Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person (it being understood that the obligations of any Person with respect to any escrow arrangement into which such Incremental Facility proceeds are deposited shall not constitute a guarantee) or (y) secured by any assets other than the Collateral (other than with respect to proceeds of such Incremental Facility that are subject to (and only for so long as they are subject to) an escrow or other similar arrangements and any upfront fees, original issue discount related deposit of Cash or similar feesCash Equivalents to cover interest and premium with respect to such Incremental Facility);,
(vxi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vii), in each case, to the extent provided in such Sections; provided, that, any Incremental Facility may participate (1) in any voluntary prepayment of Term Loans on a pro rata basis, greater than pro rata basis or less than pro rata basis with the then-outstanding Term Loans, and (2) in any mandatory prepayment, on a pro rata basis (to the extent secured on a pari passu basis with the Initial Term Loans) or less than pro rata basis with the then-outstanding Credit Facility (and on a greater than pro rata basis with respect to any prepayment of any such Incremental Loans with the proceeds of any Refinancing Indebtedness or any Incremental Facility incurred in reliance on clause (b) of the Incremental Cap),
(A) subject to Section 1.10(a), except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of an acquisition or similar Investment permitted under this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties no Event of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing Default under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that Sections 7.01(a), (f) or (g) exists immediately prior to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;Incremental Facility,
(vixiii) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and/or other general corporate purposes (including Capital Expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other purpose use not prohibited by this Agreement; , and
(viixiv) on the date of the Borrowing of any Incremental Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Loans will participate proportionately in each then- outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv)(B) may result in new Incremental Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding SOFR Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Incremental Lender”); provided provided, that the Administrative Agent and any Issuing Bank shall have consented a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Incremental Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Incremental Lender; provided, further, that any Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Incremental Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable requestrequest or at the request of the Required Lenders, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Incremental Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) Questionnaire and such other documents as it shall reasonably and customarily require from such Additional Revolving Incremental Lender, (iii) the Administrative Agent and Lenders shall have received all received, on behalf of the Incremental Lenders, the amount of any fees required payable to be paid the Incremental Lenders in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(f), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(vSection 2.22(a)(xii) above has been satisfied.
(ie) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case Notwithstanding anything herein to the extent necessary so that all of contrary, the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect Administrative Agent shall have no obligation to confirm or otherwise ascertain whether any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply conditions precedent to the transactions effected pursuant to this clause (e)effectiveness of any Incremental Facility or the making of any Incremental Loans or the execution of any Incremental Facility Amendment have been satisfied and shall incur no liability in connection with executing any Incremental Facility Amendment.
(f) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case case, on terms consistent with this Section 2.22. In addition, the Incremental Facility Amendment with respect to any Incremental Facility may, without the consent of any Lenders (other than those providing such Incremental Loans) or the Administrative Agent, include such amendments to this Agreement as may be necessary, appropriate or advisable to make the applicable Incremental Loans “fungible” with the relevant existing Class of Term Loans (including by modifying the amortization schedule in a manner that does not result in a reduction of the amount of amortization owing to the then-existing Lenders and/or extending the time period during which any prepayment premium applies) and to make the administration of the applicable Incremental Loans administratively feasible for the Administrative Agent.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section Sections 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (SOLV Energy, Inc.), Credit Agreement (SOLV Energy, Inc.)
Incremental Credit Extensions. (a) The At any time and from time to time after the Amendment and Restatement Effective Date, subject to the terms and conditions set forth herein, the Lead Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Revolving Lenders) ), pursuant to an Incremental Revolving Facility Amendment (“Incremental Amendment”) request to increase effect increases in the aggregate amount of Commitments of any existing Class of the Revolving Credit Commitments (any each such increase, a “Revolving Credit Commitment Increase”) from Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment:
(A) except as otherwise agreed by the Additional Revolving Lenders providing an “Incremental Facility to finance an Acquisition or other investment permitted under this Agreement, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect thereto,
(B) the Lead Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclause (A) above, and
(C) all fees or other payments owing pursuant to Section 10.13 or as otherwise agreed in writing in respect of such Revolving Facility” Credit Commitment Increase to the Administrative Agent and the loans thereunderAdditional Revolving Lenders shall have been paid.
(b) Notwithstanding anything to contrary herein, “Incremental Revolving Loans”) in an the aggregate principal amount of all Revolving Credit Commitment Increases incurred after the Amendment and Restatement Effective Date shall not to exceed the Incremental Cap$2,000.0 million. Each Revolving Credit Commitment Increase shall be in a minimum principal amount of $50.0 million and integral multiples of $1.0 million in excess thereof; provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,
(ii) except as separately agreed from time to time between 50.0 million if such amount represents all the Lead Borrower and any Lender, no remaining availability under the aggregate principal amount of Revolving Credit Commitment Increases set forth above. No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Credit Commitment or Incremental Revolving Loan), the Administrative Agent (Increase unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderso agrees.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and notice from the Lead Borrower all such documentation (including pursuant to this Section 2.14 shall set forth the requested amount of the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this AgreementCredit Commitment Increase.
(d) As a condition precedent to Upon the effectiveness implementation of any Incremental Revolving Facility or the making of any Incremental Revolving LoansCredit Commitment Increase pursuant to this Section 2.14, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental each Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Additional Revolving Lender, and each relevant Incremental Additional Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Participating Interests such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Additional Revolving Lender’s) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Participating Interests shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22Increase) and (iiB) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase), and such other Revolving Lenders (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans of such Class pro rata on the basis of their respective Commitments of such Class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22Increase); it being understood and agreed 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.
(e)) Effective on the date of each Revolving Credit Commitment Increase the maximum amount of Letter of Credit Usage permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the L/C Issuers and the Lead Borrower; provided that the Letter of Credit Usage shall not exceed the Revolving Credit Commitment after giving effect to the Revolving Credit Commitment Increase.
(f) The Lenders hereby irrevocably authorize An Incremental Amendment may, subject to Section 2.14(a), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with Borrower, to effect the establishment provisions of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.222.14 (including to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders).
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Loan Agreement (Western Digital Corp), Loan Agreement (Western Digital Corp)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any time, time or from time to time on one or more occasions deliver a after the Effective Date, by written request notice delivered to the Term Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy i) one or more additional Classes of such request to each term loans (each, an “Incremental Term Facility”), (ii) one or more additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments same Class of any existing Class of Commitments term loans (each, an “Incremental Term Increase”), (iii) one or more tranches of cash-flow revolving credit facilities (the first of such tranches, the “Initial Incremental Revolving Facility” and, together with each such tranche thereafter, the “Incremental Revolving Facilities”) or (iv) one or more increases in the amount of any such increaseexisting Class of Incremental Revolving Loans (each, an “Incremental Revolving Increase”, and together with any Incremental Term Facility” , Incremental Term Increase and Incremental Revolving Facilities, the loans thereunder, “Incremental Revolving LoansFacilities”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time , after giving effect to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, Facility Amendment referred to below and at the determination to provide time that any such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility Term Loan or Incremental Revolving Loan is made or effected, no Event of Default (except, in the case of the incurrence or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement) shall have occurred and be continuing. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof if such Incremental Facilities are denominated in dollars (unless the Borrower and the Term Administrative Agent otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(b) The Incremental Term Loans (a) shall (i) rank equal or junior in right of payment with the Term Loans, (Aii) no Event if secured, be secured only by the Collateral securing the Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Term Maturity Date, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Term Loans, (d) shall have a maturity date (subject to clause (b)), an amortization schedule (subject to clause (c)), interest rates (including through fixed interest rates), “most favored nation” provisions, interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants, prepayment terms and premiums and other terms and conditions as determined by the Borrower and the Additional Term Lenders thereunder; provided that, for any Incremental Term Loans that rank equal in right of Default payment with the Term Loans and are secured on a pari passu basis with the Collateral securing the Loan Document Obligations, in the event that the Effective Yield for any such Incremental Term Loans is greater than the Effective Yield for the Term Loans by more than 0.50% per annum, then the Effective Yield for the Term Loans shall exist immediately be increased to the extent necessary so that the Effective Yield for the Term Loans is equal to the Effective Yield for such Incremental Term Loans minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding); and (e) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that (x) to the extent the terms and documentation with respect to any Incremental Facility are not consistent with the existing Term Loans (except with respect to matters contemplated by clauses (b), (c) and (d) above) the terms, conditions and documentation of any such Incremental Facility shall be as agreed between the Borrower and the Additional Term Lenders providing such Incremental Facility and (y) in no event shall it be a condition to the effectiveness of, or after giving effect borrowing under, any such Incremental Term Loans that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the Additional Term Lenders providing such Incremental Term Loans. Any Incremental Term Facility or Incremental Term Increase shall be pursuant to documentation as determined by the Borrower and the Additional Term Lenders providing such Incremental Term Facility or Incremental Term Increase, subject to the restrictions and exceptions set forth above.
(c) The Incremental Revolving Facilities shall be on terms and documentation as determined by the Borrower and the lenders providing such Incremental Revolving Facility; provided that any Incremental Revolving Facility (a) shall (i) rank equal or junior in right of payment with the Term Loans, (ii) if secured, be secured only by the Collateral securing the Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not provide for scheduled amortization or mandatory commitment reductions prior to the final scheduled maturity date of the Term Loans, (c) may provide for the ability to participate with respect to borrowings and, subject to exceptions set forth in the Loan Documents, repayments on a pro rata basis or less than pro rata basis (but not greater than pro rata basis) with any other existing cash-flow revolving facility tranche, (d) may not have a final scheduled maturity date earlier than the Term Loans, (e) may provide for the ability to permanently repay and terminate the Incremental Revolving Loans on a pro rata basis, less than a pro rata basis, or greater than a pro rata basis with any existing cash-flow revolving facility tranche and (f) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that (x) to the extent the terms and documentation with respect to any Incremental Revolving Facility are not consistent with the Term Loans, the terms, conditions and documentation of any such Incremental Revolving Facility shall be as agreed between the Borrower and the Additional Revolving Lenders providing such Incremental Revolving Facility and (By) in no event shall it be a condition to the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under effectiveness of, or borrowing under, any such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall of any Loan Party set forth herein be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capitalcorrect, general corporate purposes except and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) solely to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably extent required by the Administrative Agent to evidence and effectuate Additional Revolving Lenders providing such Incremental Revolving CommitmentLoans. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, Increase shall be pursuant to documentation as determined by the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) Borrower and the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of providing such Incremental Revolving Facility or Incremental Revolving Increase, subject to the restrictions and exceptions set forth above.
(d) The Incremental Revolving Increase shall be treated the same as the Class of Incremental Revolving Loans being increased (including with respect to maturity date thereof) and (iv) the Administrative Agent shall have received a certificate be considered to be part of the Class of Incremental Revolving Loans being increased (it being understood that, if required to consummate an Incremental Revolving Increase, the pricing, interest rate margins, “most favored nation” provisions, rate floors and undrawn commitment fees on the Class of Incremental Revolving Loans being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Increase (without any requirement to pay such fees to any existing Incremental Revolving Lenders)). Any Incremental Revolving Increase shall be on the same terms and pursuant to the same documentation applicable Borrower signed by a Responsible Officer thereof:to the Incremental Revolving Loans (excluding upfront fees and customary arranger fees).
(Ae) certifying and attaching a copy Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such relevant Incremental Revolving Facility Term Loans or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) Commitments in respect of any Incremental Term Increase or Incremental Revolving Increase shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Term Lender, if any, and the Term Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, be obligated to provide any Incremental Term Loans or Incremental Revolving Loans) or by any Additional Term Lender or Additional Revolving Lender. Incremental Term Loans and Incremental Revolving Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Term Administrative Agent and the Lead Borrower in connection with Borrower, to effect the establishment provisions of this Section 2.20. The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such new tranches or sub-tranches or conditions as the maintaining of such single tranche, in each case on terms consistent with parties thereto shall agree and as required by this Section 2.222.20. The Borrower will use the proceeds of the Incremental Term Loans or Incremental Revolving Loans for any purpose not prohibited by this Agreement.
(g) Notwithstanding anything to the contrary in contrary, this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.20 shall supersede any provision provisions in Section 2.18 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Term Loan Credit Agreement (Builders FirstSource, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase ), request one or more increases in the aggregate amount of Commitments of any existing Class of the Revolving Credit Commitments (any each such increase, a “Revolving Commitment Increase”); provided that both at the time of any such request and upon the effectiveness of any Additional Credit Extension Amendment referred to below (an “Incremental Effective Date”), no Default or Event of Default shall exist. Each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than $25,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,
(ii) except as separately agreed from time to time between 25,000,000 if such amount represents all remaining availability under the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties limit set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that next sentence). Notwithstanding anything to the extent that any representation and warranty specifically refers to a given date or periodcontrary herein, it shall be true and correct in all material respects as (x) the aggregate amount of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (Revolving Credit Commitments after giving effect to any qualification therein) in all respects on such respective dates;
Revolving Commitment Increase (vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose concurrent reduction in the Revolving Credit Commitments) shall not prohibited by exceed the Revolving Credit Commitment Cap, and (y) on a Pro Forma Basis and after giving effect to the borrowing of all such Revolving Commitment Increases (assuming for such calculation that any Revolving Commitment Increases are fully drawn), the Senior Secured Net Leverage Ratio for the most recently ended Test Period shall be less than or equal to 3.75 to 1.0. Each notice from the Borrower pursuant to this Agreement; and
(vii) at no time Section shall there be more than three separate Maturity Dates in effect with respect to Incremental set forth the requested amount and proposed terms of the relevant Revolving Facilities and any other Additional Commitment Increases. Revolving Facility at any time.
(b) Incremental Revolving Commitments Commitment Increases may be provided by any existing Lender, Lender or by any other lender (bank or other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) financial institution approved by the Borrower (any such other lender bank or other financial institution being called an “Additional Revolving Lender”); , provided that each L/C Issuer and the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving such Lender’s provision of Incremental or Additional Lender’s providing such Revolving Commitments Commitment Increases if such consent would be required under Section 9.05(b10.07(b) for an assignment of Revolving Loans Credit Commitments to such Additional Revolving Lender.
(c) Each Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an Additional Credit Extension Amendment, executed by Holdings, the Borrower, each Lender providing agreeing to provide such Commitment, if any, each Additional Lender, if any, the applicable L/C Issuer (in the case of an increase of a portion Revolving Commitment Increase) and the Administrative Agent. The Additional Credit Extension Amendment may, without the consent of any Incremental Revolving Commitment shall execute other Lenders, effect such amendments to this Agreement and deliver to the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrower, to effect the provisions of this Section. The effectiveness of any Additional Credit Extension Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such documentation (including the relevant Incremental Revolving Facility Amendment Credit Extension” or an amendment similar language in such Section 4.02 shall be deemed to any other Loan Document) as may be reasonably required by the Administrative Agent refer to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”Credit Extension Amendment) and such other documents conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Revolving Commitment Increases and Letters of Credit issued pursuant to the Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Revolving Commitment Increases, unless it shall reasonably and customarily require from such Additional so agrees. Upon each increase in the Revolving LenderCredit Commitments pursuant to this Section, (iiia) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental each Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal its Pro Rata Share and (b) if, on the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders date of such Class increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hb) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Revolving Credit Agreement (IASIS Healthcare LLC), Revolving Credit Agreement (IASIS Healthcare LLC)
Incremental Credit Extensions. Subject to the terms of this Section 2.25:
(a) The Lead Borrower Borrowers may, at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice from the Borrower Representative to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant and the Person appointed by the Borrower Representative to arrange an Incremental Revolving Facility Amendment (such Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower Representative after consultation with the Administrative Agent, the “Incremental Arranger”), request one or more additional tranches of term loans and/or one or more increases to increase the aggregate amount of any Class of Term Loans then outstanding (the commitments thereof, the “Incremental Term Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Term Lender”) and/or one or more additional tranches of revolving loans (the “Additional/Replacement Revolving Commitments”) and/or one or more increases in the amount of the Revolving Commitments of any existing Class of Commitments (any each such increase, a “Revolving Commitment Increase”, the loans thereunder and under any Additional/Replacement Revolving Commitments, the “Incremental Revolving Loans”, and a Lender making a commitment to provide such Incremental Revolving Loans, an “Incremental Revolving Lender”); provided that:
(i) after giving effect to any such Additional/Replacement Revolving Commitments, any such Revolving Commitment Increase and any such Incremental Term Loans, the aggregate amount of such Additional/Replacement Revolving Commitments, Revolving Commitment Increases and Incremental Term Loans shall not exceed an amount equal to the sum of (x) the Ratio-Based Incremental Amount (any Incurrence under this clause (x), a “Ratio-Based Incremental Facility” ”), plus (y) the Prepayment-Based Incremental Amount (any Incurrence under this clause (y), a “Prepayment-Based Incremental Facility”), plus (z) the Cash-Capped Incremental Amount (any Incurrence under this clause (z), a “Cash-Capped Incremental Facility”), provided that, for the avoidance of doubt, the amount available to the Borrowers pursuant to the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility shall be available at all times and shall not be subject to the ratio test in the Ratio-Based Incremental Facility. Unless the Borrower Representative elects otherwise, any Incremental Term Loans, Additional/Replacement Revolving Commitments or Revolving Commitment Increase shall be deemed Incurred first under the Ratio-Based Incremental Facility, with the balance Incurred next under the Prepayment-Based Incremental Facility and then under the Cash-Capped Incremental Facility. The Borrower Representative may designate any Incremental Arranger of any Incremental Facility with such titles under the Incremental Facility as Borrower Representative may deem appropriate;
(ii) the Incremental Term Loans and Incremental Revolving Loans shall rank pari passu in right of payment (or be subordinated if agreed by the Lenders providing such Incremental Loans) and of security (or on a junior lien or unsecured basis, to the extent agreed by the Lenders providing such Incremental Loans), and shall, if not pari passu in right of payment and security, be provided as a separate facility and, if secured, be subject to an Intercreditor Agreement (or any Intercreditor Agreement may be amended or replaced in a manner reasonably acceptable to the Administrative Agent);
(iii) other than Customary Bridge Financings and Permitted Early Maturity Indebtedness, the Incremental Term Loans shall not mature earlier than the Term Loan Maturity Date and the Incremental Revolving Loans shall not mature earlier than the Revolving Termination Date;
(iv) other than Customary Bridge Financings and Permitted Early Maturity Indebtedness, the Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Term Loans;
(v) (x) the interest rates (and, in the case of any Incremental Term Loan, subject to clauses (iii) and (iv) above, the amortization schedule) applicable to any such Incremental Term Loans or Additional/Replacement Revolving Commitments shall be determined by the Borrower Representative and the applicable Incremental Term Lenders or Incremental Revolving Lenders, as the case may be, and (y) any such Additional/Replacement Revolving Commitments or Revolving Commitment Increase shall not have amortization or scheduled mandatory commitment reductions (other than at the maturity thereof);
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 9.1(a) or 9.1(g)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Term Loans and/or Incremental Revolving Loans made thereunder);
(vii) other than Customary Bridge Financings, with respect to any Incremental Term Loans that are syndicated “term loan B” loans thereundermade pursuant to the Ratio-Based Incremental Facility, are secured on a pari passu basis with the Obligations and are made on or prior to the date that is twelve months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, including interest rate floors (subject to clause (2) of the proviso in this clause (vii)), upfront fees or OID (with any OID being equated to interest margin based on an assumed four-year life to maturity for purposes of determining any increase to the Applicable Margin under the Term Facility or Revolving Facility, as the case may be)) with respect to the Incremental Term Loans made thereunder paid by any Borrower to all lenders generally (as determined by the Borrower Representative and the applicable Incremental Term Lenders) (but excluding any arrangement, commitment, ticking, structuring, syndication, unused line or other similar fees payable by any Borrower in connection therewith, which shall not be included and equated to interest rate and, for the avoidance of doubt, excluding any bona fide arrangement, commitment, ticking, structuring, syndication or similar fees paid by any Borrower to a lender or an Affiliate of a lender in its capacity as a commitment party or arranger and regardless of whether such Indebtedness is syndicated to other third parties) with respect to the Incremental Term Loans made thereunder exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to clause (2) of the proviso in this clause (vii)) and OID (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) paid by any Borrower to all lenders generally in the primary syndication of such Initial Term Loans (computed in a manner consistent with the foregoing)) with respect to the Initial Term Loans that are denominated in the same currency as such Incremental Term Loans, as the case may be, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinancing loans shall be taken into account in lieu of the OID applicable to the Refinanced loans), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Revolving Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans denominated in the same currency shall automatically be increased by the Incremental Yield Differential; provided, (1) if the Incremental Term Loans include an interest-rate floor greater than the interest rate floor applicable to such Initial Term Loans”, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the Applicable Margin, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors and (2) any Incremental Term Loans that constitute fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis; provided, further that this Section 2.25(a)(vii) shall not apply to (x) Incremental Term Loans in an aggregate principal amount not to exceed $115,000,000 at any one time outstanding, (y) any Incremental Term Loan with a final maturity later than one year after the Term Loan Maturity Date or (z) any Incremental Term Loan that is Incurred in connection with a Permitted Acquisition or other Investment;
(viii) the Incremental Cap; provided that:Term Loans, Additional/Replacement Revolving Commitments and Revolving Commitment Increases may be denominated in Dollars and any other currency acceptable to the Administrative Agent, the Incremental Arranger and the applicable Incremental Term Lenders or Incremental Revolving Lenders, as the case may be;
(iix) no Incremental Term Loans, Additional/Replacement Revolving Commitments and Revolving Commitment Increases may be less secured by any assets other than $5,000,000,the Collateral and no Incremental Term Loans and Revolving Commitment Increases shall be guaranteed by any person other than the Loan Parties; and
(iix) except as separately agreed from time to time between Incremental Term Loans must be Incurred by the Lead Borrower Borrowers on a joint and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitmentseveral basis, and Additional/Replacement Revolving Commitments and Revolving Commitment Increases must be Incurred by the determination to provide such commitments shall Borrowers on a joint and several basis. All or any portion of Indebtedness originally designated as Incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility will automatically be within reclassified as having been Incurred under the sole and absolute discretion Ratio-Based Incremental Facility so long as, at the time of such Lender;
reclassification (iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after without giving effect to any qualification therein) in all respects on such respective dates;
(vi) amounts previously Incurred under the proceeds of any Cash-Capped Incremental Revolving Facility may be used for working capitalor the Prepayment-Based Incremental Facility that are not being reclassified), general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who the Borrowers would be permitted to become a Lender Incur the aggregate principal amount of Indebtedness being so reclassified under the Ratio-Based Incremental Facility (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that which, for the Administrative Agent and any Issuing Bank avoidance of doubt, shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision effect of increasing availability under the Cash-Capped Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Prepayment-Based Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline LoansFacility, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of by the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders amount of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ereclassified Indebtedness).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Incremental and Refinancing Amendment (Powerschool Holdings, Inc.), First Lien Credit Agreement (Powerschool Holdings, Inc.)
Incremental Credit Extensions. (a) The Lead Parent Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (a) pursuant to an Incremental Revolving Facility Amendment to increase one or more increases in the aggregate amount of Commitments of any existing Class of the Revolving Credit Commitments (any each such increase, an a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist. Each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than a amount of $100,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than a amount of $5,000,000,
100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases shall not exceed $750,000,000 (ii) except as separately agreed such amount, the "Incremental Amount”). Each notice from time the Parent Borrower pursuant to time between this Section shall set forth the Lead Borrower requested amount and any Lenderproposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of by any existing Lender (other than in its capacity, if any, as it being understood that no existing Revolving Credit Lender will have an obligation to provide a Lender providing all or part portion of any Incremental Revolving Commitment or Incremental Revolving LoanIncrease), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing LenderAgent, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); , provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving such Lender’s provision of Incremental or Additional Lender’s providing such Revolving Commitments Commitment Increases if such consent would be required under Section 9.05(b10.07(b) for an assignment of Loans or Revolving Loans Credit Commitments, as applicable, to such Additional Revolving Lender.
(c) Each Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, each Lender providing a portion 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 Incremental Revolving Commitment shall execute other Lenders or Loan Parties, effect such amendments to this Agreement and deliver to the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower Parent Borrower, 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 (it being understood that all references to “the date of such documentation (including the relevant Incremental Revolving Facility Amendment Credit Extension” or an amendment similar language in such Section 4.02 shall be deemed to any other Loan Document) as may be reasonably required by the Administrative Agent refer to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”Amendment) and such other documents conditions as it the parties thereto shall reasonably and customarily require from agree. The Parent Borrower shall use the proceeds of the Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that to the extent the proceeds of Revolving Commitment Increases are being used to refinance Retained Existing Notes, such Additional Revolving Lender, (iii) refinancing occurs no earlier than the Administrative Agent and Lenders shall have received all fees required to be paid in respect final maturity date of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
Retained Existing Notes. Upon each increase in (A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting Revolving Credit Commitments pursuant to such Incremental this Section 2.14, (x) each Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such Class increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hb) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (CC Media Holdings Inc), Credit Agreement (C C Media Holdings Inc)
Incremental Credit Extensions. (a) The Lead Borrower may, Finance may at any time, time or from time to time on one or more occasions deliver a after the Effective Date, by written request notice delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver i) one or more additional Classes of term loans (each a copy of such request to each “Incremental Term Facility”) and/or (ii) one or more additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments same Class of any existing Class of term loans (each a “Incremental Term Increase”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more increases in the amount of the Revolving Commitments of any Class (any each such increase, an “Incremental Revolving Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility” , Incremental Term Increase and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time Increases, the “Incremental Facilities”); provided that after giving effect to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, Facility Amendment referred to below and at the determination to provide time that any such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility is made or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreementeffected, (Ax) no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, no Specified Event of Default) shall exist immediately prior to or after giving effect to such Incremental Revolving Facility have occurred and be continuing and (By) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects on and as of such date (provided that, in each case, to the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though extent that such representations and warranties had been made on and as of such specifically refer to an earlier date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it they shall be true and correct in all material respects respect as of such date or for such periodearlier date; providedprovided further that, furtherin each case, that any representation or and warranty that is qualified as to “materiality,” ”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on respect as of such respective dates;
(vi) date). Notwithstanding anything to the proceeds contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there not exceed the Incremental Cap at such time. Each Incremental Facility shall be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities a minimum principal amount of $5,000,000 and any other Additional Revolving Facility at any time.
integral multiples of $1,000,000 in excess thereof (b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”unless the Co-Borrowers and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to remaining availability under the relevant Additional Revolving Lender’s provision aggregate principal amount of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition Facilities set forth in clause (a)(v) above has been satisfiedabove.
(i) Each Lender The Incremental Term Facilities (A) shall (1) rank equal or junior in right of payment with the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Initial Term Loans, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Term Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as applicable, such determined by Finance and the Additional Term Lenders thereunder; provided that, after giving effect to each deemed assignment for any Incremental Term Facility that ranks equal in right of payment with the Initial Term Loans and assumption of participationsis secured by the Collateral on a pari passu basis with the Secured Obligations, all of in the Lenders’ (including each event that the Effective Yield for any such Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline LoansTerm Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, as applicable, the Effective Yield for the Initial Term Loans shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case increased to the extent necessary so that all of the Lenders of Effective Yield for the Initial Term Loans is equal to the Effective Yield for such Class participate in each Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding borrowing of Revolving Initial Term Loans pro rata on shall be increased to an amount not to exceed the basis of their respective Commitments of “LIBOR floor” applicable to such Class (after giving effect Incremental Term Facility prior to any increase in the Commitment pursuant Applicable Rate applicable to this Section 2.22such Initial Term Loans then outstanding); , (E) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood and agreed that any such Indebtedness that is secured on a pari passu basis by the minimum borrowing, Collateral with the Secured Obligations may participate on a pro rata borrowing and basis or a less than a pro rata payment requirements contained elsewhere basis (but not greater than a pro rata basis) in this Agreement shall not any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the transactions effected pursuant to this clause Initial Term Loans (eas determined by Holdings in good faith).
(fii) The Lenders hereby irrevocably authorize such amendments Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to this Agreement the maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the other Loan Documents as same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be necessary in order to establish new tranches increased and additional upfront or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as similar fees may be necessary or appropriate payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of proviso to Section 2.20(b)(i) as if such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(giii) Notwithstanding anything The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the contrary in this Section 2.22 or in any other provision maturity date thereof), shall be considered to be part of any Loan Document, if the proceeds Class of Revolving Commitments being increased and shall be on the date same terms applicable to the Class of effectiveness of any Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Facility are intended Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to be applied the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to finance an acquisition pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Lenders Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such Incremental commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Facility so agreeLenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 covenants and event of default provisions applicable to the contrary and shall, to extent applicable, be subject Initial Term Loans (as determined by Holdings in all respects to Section 1.11good faith).
Appears in 2 contracts
Sources: Credit Agreement (Graftech International LTD), Credit Agreement (Graftech International LTD)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Restatement Effective Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (a) pursuant to an one or more additional tranches of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”) or (b) one or more increases in the aggregate amount of Commitments of any existing Class of the Revolving Credit Commitments (any each such increase, an a “Revolving Credit Commitment Increase”), provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below (i) all representations and warranties in Section 4 shall be true and correct in all material respects, (ii) no Default or Event of Default shall exist or would result therefrom and (iii) the pro forma Consolidated Net Senior Secured Leverage Ratio of the Borrower and its Subsidiaries after giving effect to such Incremental Term Loans or Revolving Facility” Credit Commitment Increase shall not be greater than 4.50 to 1.00.
(b) Each tranche of Incremental Term Loans and the loans thereunder, “Incremental each Revolving Loans”) Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $5,000,000 which is not to exceed the Incremental Cap; less than $25,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and there shall be not more than four requests for Incremental Term Loans or Revolving Credit Commitment Increases. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Term Loans and the aggregate amount of the Revolving Credit Commitment Increases shall not exceed $160,000,000 less any amounts of Consolidated Senior Secured Debt incurred pursuant to Section 7.2(p)(ii)(B)(x).
(iic) The Incremental Term Loans and Revolving Credit Loans made pursuant to the Revolving Credit Commitment Increases (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) in the case of Incremental Term Loans, shall not mature earlier than the Term Loan Maturity Date or have a weighted average life which is shorter than the than the remaining average life of the Term Loans and (c) except as separately agreed from time set forth above, shall be treated substantially the same as or less favorably than the Term Loans or the Revolving Credit Loans, as the case may be (in each case, including with respect to time between mandatory and voluntary prepayments and voting rights), provided that the Lead interest rates applicable to the Incremental Term Loans shall be determined by the Borrower and the lenders thereof so long as the applicable margin with respect to such Incremental Term Loans is not more than 0.25% higher than the Applicable Margin for the Term Loan Facility.
(d) Each notice from the Borrower pursuant to this Section 2.25 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any “Additional Lender”), provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing any such Revolving Credit Commitment Increases if such consent would be required under Section 10.1 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, no an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by 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 opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 5.2 and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans and the Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving CommitmentCredit Commitment Increases, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than unless it so agrees. Upon each increase in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect Credit Commitments pursuant to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment2.25, each Additional Revolving Credit Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each relevant Incremental such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such Class (including increase, there are any Revolving Credit Loans outstanding, the Lenders providing the relevant Incremental Revolving Facility), and such other Credit Lenders (including the Lenders providing the relevant Incremental Revolving FacilityAdditional Lenders) shall purchase make such payments as directed by the Administrative Agent in order that the Revolving Loans, Credit Loans are held by the Revolving Credit Lenders (including Additional Lenders) ratably in each case to accordance with the extent necessary so that all of increased Revolving Credit Commitments (and interest and other payments shall be adjusted accordingly).
(e) The Administrative Agent and the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)Section 2.25.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (National CineMedia, LLC)
Incremental Credit Extensions. (a) The Lead Borrower Representative may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of any Class of Initial Term Loans, 2017 Replacement Term Loans, 2021 Replacement Term Loans or any Additional Term Loans by requesting new term loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Revolving Facility Amendment to Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving commitments and/or increase the aggregate amount of Commitments of Total Revolving Credit Commitment or any existing Class of Commitments Additional Revolving Commitment (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,00010,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) (A) except as otherwise provided herein, the terms of each Incremental Revolving Facility (other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility or any Additional Revolving Facility, as applicable, and other than as permitted under clause (v) below), will be substantially identical similar to those applicable to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent (other than in the case of any Incremental Revolving Facility that is implemented by increasing the amount of then-existing Total Revolving Credit Commitments (rather than by implementing a new tranche of Revolving Credit Commitments), which shall have identical terms to such then-existing Total Revolving Credit Commitments) and (B) no Incremental Revolving Facility will mature earlier than the then-applicable Latest Revolving Loan Maturity Date or require any scheduled amortization or mandatory commitment reduction prior to such Maturity Date,
(v) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower Representative and the lenders providing such Incremental Facility or Incremental Loans; provided that (A) in the case of any Incremental Term Facility or Incremental Term Loans which rank pari passu with the 2021 Replacement Term Loans in right of payment and with respect to security, such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to such 2021 Replacement Term Loans unless the interest rate margin with respect to such 2021 Replacement Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Facility or Incremental Term Loans, minus 0.50%; provided further that in determining the applicable interest rate under this clause (v): (w) original issue discount or upfront fees paid by any Borrower (or any new Borrower in accordance with clause (xvi) below) in connection with any Class of 2021 Replacement Term Loans or any Incremental Term Facility (based on a four-year average life to maturity), shall be included (it being acknowledged and agreed that the original issue discount or upfront fees paid in connection with any Class of 2021 Replacement Term Loans shall not, for purposes of the clause (v), be affected by any subsequent Incremental Term Facility that is implemented by increasing the amount of such Class of Term Loans (rather than by implementing a new tranche of 2021 Replacement Term Loans)), (x) any amendments to the Applicable Rate in respect of any Class of 2021 Replacement Term Loans that became effective subsequent to the Third Amendment Effective Date but prior to the time of the addition of the relevant Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees (regardless of whether such fees are paid to or shared in whole or in part with any lender) paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with any 2021 Replacement Term Loans or any Incremental Term Facility or to one or more arrangers (or their affiliates) in their capacities as such applicable to the relevant Incremental Term Facility or Incremental Term Loans and any other fees not paid to all relevant lenders generally shall be excluded and (z) if the relevant Incremental Term Facility or Incremental Term Loans include any Adjusted Term SOFR floor (or any equivalent floor) that is greater than the Floor, and such floor is greater than Adjusted Term SOFR applicable to such 2021 Replacement Term Loans having an Interest Period of three months on the date of determination, the excess amount shall be equated to interest margin for determining the applicable interest rate, and (B) in the case of any Incremental Revolving Facility or Incremental Revolving Loans which rank pari passu with any then existing Revolving Facility in right of payment and with respect to security, such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the such existing Revolving Facility unless the interest rate margin with respect to such existing Revolving Facility is adjusted to be equal to the interest rate with respect to the relevant Incremental Revolving Facility or Incremental Revolving Loans, minus 0.50%; provided further that in determining the applicable interest rate under this clause (v): (w) original issue discount or upfront fees paid by the Revolver Borrower in connection with an existing Revolving Facility (based on a four-year average life to maturity), shall be included, (x) any amendments to the Applicable Rate in respect of the then existing Revolving Facility that became effective subsequent to the establishment of such Revolving Facility but prior to the time of the addition of the relevant Incremental Revolving Facility or Incremental Revolving Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees (regardless of whether such fees are paid to or shared in whole or in part with any lender) paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with such existing Revolving Facility or to one or more arrangers (or their affiliates) in their capacities as such applicable to the relevant Incremental Revolving Facility or Incremental Revolving Loans and any other fees not paid to all relevant lenders generally shall be excluded and (z) if the relevant Incremental Revolving Facility or Incremental Revolving Loans include any Adjusted Term SOFR floor (or any equivalent floor) that is greater than that applicable to any then existing Revolving Facility, and such floor is greater than Adjusted Term SOFR applicable to such existing Revolving Facility having an Interest Period of three months on the date of determination, the excess amount shall be equated to interest margin for determining the applicable interest rate.
(vi) the final maturity date with respect to any upfront fees, original issue discount or similar fees);Incremental Facility shall be no earlier than the Latest Term Loan Maturity Date at the time of the incurrence thereof,
(vvii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche(s) of Term Loans (without giving effect to any prepayments thereof),
(viii) (A) any Incremental Term Facility shall rank pari passu with any then-existing tranche of Term Loans in right of payment and may rank pari passu with or junior to any then-existing tranche of Term Loans with respect to security or may be unsecured (and to the extent the relevant Incremental Facility ranks pari passu with or is subordinated to the Term Loans in right of security or is unsecured and documented in a separate agreement to this Agreement) (it being acknowledged and agreed that any such Incremental Term Facility that is subordinated to the Term Loans in right of security shall be documented in a separate agreement to this Agreement, it shall be subject to a Permitted Pari Passu Intercreditor Agreement (in the case of an Incremental Facility that ranks pari passu with any then-existing tranche of Term Loans with respect to security) or a Permitted Junior Intercreditor Agreement (in the case of an Incremental Facility that ranks junior to any then-existing tranche of Term Loans with respect to security) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party (but need not be guaranteed by all such Persons) or (y) secured by any assets other than the Collateral (but need not be secured by all such assets),
(A) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security shall be made on a pro rata basis with such existing Term Loans and (B) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall be made on a junior basis with respect to such existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except, in the case of preceding clause (A); that the Term Borrowers and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(x) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisitionLimited Condition Acquisition (which shall be subject to Section 2.22(i)), investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such incremental facility,
(xi) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility and in connection with any Limited Condition Acquisition (B) the which shall be subject to Section 2.22(i)), all representations and warranties of the Loan Parties set forth in this Agreement Article 3 and the in each other Loan Documents Document shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the applicable closing date in respect of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that , except to the extent that any representation such representations and warranty specifically refers warranties expressly relate to a given date or periodan earlier day, it in which case they shall be true and correct in all material respects (or, if qualified by materiality, in all respects) as of such date earlier date.
(xii) except as otherwise required or for permitted in clauses (v) through (ix) above (and other than in the case of any Incremental Term Facility that is implemented by increasing the amount of then-existing Term Loans of any Class (rather than by implementing a new Class of Term Loans), which shall have identical terms to such period; providedthen-existing Class of Term Loans), furtherall other terms of any Incremental Term Facility, if not substantially similar to the terms of the 2021 Replacement Term Loans, shall be reasonably satisfactory to the Borrower Representative and the Administrative Agent (it being understood that any representation or warranty that is qualified as terms which are not consistent with the terms of the 2021 Replacement Term Loans and are applicable only after the then-existing Latest Term Loan Maturity Date are deemed to “materialitybe reasonably acceptable to the Administrative Agent),” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixiii) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and other general corporate purposes and any other purpose use not prohibited by this Agreement; and,
(viixiv) on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans, 2017 Replacement Term Loans, 2021 Replacement Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Initial Term Loans, 2017 Replacement Term Loans, 2021 Replacement Term Loans or Additional Term Loans, as applicable, of the same Type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding borrowing of Initial Term Loans, 2017 Replacement Term Loans, 2021 Replacement Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class;
(xv) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental the Revolving Facilities Facility and any other existing Additional Revolving Facility at any time;
(xvi) (A) any Term Borrower or (subject to this inclusion of “collateral allocation mechanism” provisions reasonably satisfactory to the Administrative Agent) one or more Wholly-Owned Subsidiaries of the Borrower Representative reasonably acceptable to the Administrative Agent shall be the borrower(s) under any Incremental Term Facility and, (B) the Revolver Borrower or (subject to this inclusion of “collateral allocation mechanism” provisions reasonably satisfactory to the Administrative Agent) one or more Wholly-Owned Subsidiaries of the Borrower Representative reasonably acceptable to the Administrative Agent shall be the borrower(s) under any Incremental Revolving Facility
(xvii) the currency of any Incremental Facility shall be Dollars or, if agreed by all of the Lenders or Additional Lenders providing such Incremental Facility, an Alternative Currency.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Swingline Lender and any Issuing Bank Bank) shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided further that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower Representative all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving CommitmentCommitment and/or the Incremental Loans thereunder. On the effective date of such Incremental Revolving Commitment, each such Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Indivior PLC), Credit Agreement (Indivior PLC)
Incremental Credit Extensions. (a) The Lead At any time and from time to time after the Restatement Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) ), pursuant to an Incremental Revolving Facility Amendment (“Incremental Amendment”) request to increase effect (i) one or more additional term loan facilities hereunder or increases in the aggregate amount of Commitments of any existing Class of Commitments Term Facility (any each such increase, a “Term Commitment Increase”) from one or more Additional Term Lenders or (ii) one or more additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and the loans thereundertogether with any Term Commitment Increase, “any Incremental Term Facility and any Incremental Revolving LoansCredit Facility, a “Commitment Increase”) in an aggregate principal amount not to exceed the Incremental Capfrom Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(vA) except as otherwise agreed by the lenders Additional Term Lenders providing the relevant an Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of to finance a Specified Acquisition permitted under this Credit Agreement, (Ai) no Default or Event of Default shall have occurred and be continuing or would exist immediately prior to or after giving effect to such Incremental Revolving Facility thereto, and (Bii) the representations and warranties of made by the Loan Credit Parties set forth in this Agreement and pursuant to the other Loan Fundamental Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such (or in all respects, if qualified by materiality); provided that representations and warranties had been made on and that are expressly stated to be as of such date; provided that to the extent that any representation and warranty specifically refers to a given an earlier date or period, it shall be true and correct accurate in all material respects as of such earlier date (or in all respects, if qualified by materiality) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility,
(B) so long as any Revolving Credit Commitments or Term A Loans are outstanding on such date, on the date of the incurrence or effectiveness of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), LGEC shall be in compliance, on a Pro Forma Basis, with the financial ratios set forth in Section 7.9(a) and (b) for the relevant fiscal quarter;
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A Termination Date then in effect,
(D) each Incremental Term B Facility and each other Incremental Term Facility (other than an Incremental Term A Facility) shall have a final maturity date no earlier than the Term B Termination Date then in effect,
(E) the Average Life of any Incremental Term A Loans shall not be shorter than the Average Life of the Term A Loans then outstanding,
(F) the Average Life of any Incremental Term B Loans and any other Incremental Term Loans (other than Incremental Term A Loans) shall not be shorter than the Average Life of the Term B Loans then outstanding,
(G) any Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the commitments related thereto prior to, the Revolving Credit Termination Date then in effect and all other terms of any such periodIncremental Revolving Credit Facility shall be substantially identical to the Revolving Facility,
(H) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Term Facility or Incremental Term Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to security with any then existing Term B Loans (the “Relevant Existing Facility”), such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the Relevant Existing Facility unless the interest rate with respect to the Relevant Existing Facility is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus 0.50%; provided, further, that any representation in determining the applicable interest rate under this clause (H): (w) original issue discount or warranty that is qualified as upfront fees paid in connection with the Relevant Existing Facility or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to “materiality,” “Material Adverse Effect” or similar language maturity), shall be true included assuming a four year life to maturity, (x) any amendments to or changes in the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Restatement Date but prior to the time of (or concurrently with) the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and correct underwriting fees and any amendment fees paid or payable to the Arrangers (after giving effect to any qualification thereinor their affiliates) in all respects their respective capacities as such in connection with the Relevant Existing Facility or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor which is less or greater than that applicable to the Relevant Existing Facility, and a floor is applicable to the Relevant Existing Facility on the date of determination, such respective dates;lesser or greater amount shall correspondingly reduce or increase interest margin for determining the increase,
(viI) all Incremental Term Facilities shall rank pari passu or junior in right of payment and right of security in respect of the proceeds Collateral with the Term Loans or may be unsecured; provided that to the extent any such Incremental Term Facilities are subordinated in right of payment or right of security, or pari passu in right of security and subject to separate documentation, they shall be subject to an Intercreditor Agreement,
(J) no Incremental Facility shall be guaranteed by any Person which is not a Credit Party,
(K) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment with any then-existing Term Loans shall be made on a pro rata basis with such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the Additional Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), notwithstanding anything in this Credit Agreement or any other Fundamental Document to the contrary,
(L) LGEC shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A) and (B), if applicable, above, together with, if applicable, reasonably detailed calculations demonstrating compliance with subclause (B) above, and
(M) to the extent the terms of any Incremental Revolving Term Loans are not substantially identical to the terms applicable to the relevant Term Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect except with respect to Incremental Revolving Facilities pricing and fees and to the extent permitted by the foregoing clauses above and other than any other Additional Revolving Facility at any timeterms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases after the Restatement Date shall not exceed (i) $500,000,000 (less the aggregate principal amount of Incremental Equivalent Debt incurred pursuant to Section 7.1(c)(i)(B) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), the Net First Lien Leverage Ratio does not exceed 4.50 to 1.00, determined on a Pro Forma Basis after giving effect to such Commitment Increase and the application of the proceeds thereof and any related transaction, assuming (x) that all such Indebtedness incurred pursuant to such Commitment Increase (including the Incremental Equivalent Debt) is secured on a first lien basis even if not so secured, and (y) in the case of an Incremental Revolving Commitments may Credit Facility, such Incremental Revolving Credit Facility has been drawn in full as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be provided by any existing Lender, or by any other lender (other than any Disqualified Institutiondelivered pursuant to Section 6.1(a) who would be permitted to become a Lender (including any required consents) under and Section 9.05(b6.1(b) (any such other lender being called an amount under this clause (ii), the “Additional Revolving LenderRatio-Based Incremental Amount”); provided, that any Incremental Facility may be incurred under either clause (i) or clause (ii) as selected by the Borrower in its sole discretion, including by designating any portion of any Incremental Facility in excess of an amount permitted to be incurred under clause (ii) at the time of such incurrence as incurred under clause (i), and unless the Borrower otherwise elects, any portion of any Commitment Increase that could be established in reliance on this clause (ii) at the time of incurrence shall be deemed to have been incurred in reliance on the Ratio-Based Incremental Amount without reducing the Fixed Dollar Incremental Amount (the total aggregate amount described under clauses (i) and (ii) hereof, the “Incremental Cap”). Each Commitment Increase shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 million in excess thereof; provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to amount may be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments less than $10,000,000 if such consent would amount represents all the remaining availability under the aggregate principal amount of Commitment Increases set forth above. No Lender shall be required under Section 9.05(b) for an assignment of Revolving Loans obligated to such Additional Revolving Lenderprovide any Commitment Increase unless it so agrees.
(c) Each Lender or Additional Revolving Lender providing a portion notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this AgreementCommitment Increase.
(d) As a condition precedent to Upon the effectiveness implementation of any Incremental Revolving Credit Facility or the making of any Incremental Revolving LoansCredit Commitment Increase pursuant to this Section 2.13, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental each Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Additional Revolving Lender, and each relevant Incremental Additional Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Participating Interests such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Additional Revolving Lender’s) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Participating Interests shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22Increase) and (iiB) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase), and such other Revolving Lenders (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans of such Class pro rata on the basis of their respective Commitments of such Class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22Increase); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Credit Agreement shall not apply to the transactions effected pursuant to this clause the immediately preceding sentence.
(e)) Effective on the date of each Incremental Revolving Credit Facility the maximum amount of L/C Exposure permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Issuing Banks and the Borrower; provided that the L/C Exposure shall not exceed the Revolving Credit Commitment after giving effect to the Incremental Revolving Credit Facility.
(f) The Lenders hereby irrevocably authorize An Incremental Amendment may, subject to Section 2.13(a), without the consent of any other Lenders, effect such amendments to this Credit Agreement and the other Loan Fundamental Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrower, to effect the provisions of this Section 2.13 (including, in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental a Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shallCredit Commitment Increase, to extent applicable, be subject in all respects to Section 1.11reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders).
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/), Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to Amendment, (i) increase the aggregate amount of the Term Commitments (any such increase, an “Incremental Term Facility” and any loan made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the aggregate amount of any existing Class of the Revolving Commitments (any such increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed the Incremental Cap$25,000,000; provided that:
(i) no Incremental Revolving Commitment may be in an amount that is less than $5,000,000,5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall be obligated to offer the opportunity to all existing Lenders to participate in any Incremental Facility in accordance with each Lender’s pro rata share of the Facilities (which any Lender will be deemed to have declined if it does not respond to the Borrower within 15 Business Days));
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) subject to clause (v) below, the terms of each any Incremental Revolving Facility will shall be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees)applicable then-existing Facility;
(v) except as otherwise agreed the pricing shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility that is pari passu with the Term Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the then-existing Term Loans unless the Applicable Margin (and/or the Floor) with respect to the Term Loans is adjusted, or fees are paid to the relevant then-existing Term Lenders, in each case, such that the Effective Yield in respect of such existing Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Revolving Facility Term Facility;
(vi) subject to clause (v) above, to the extent applicable, any fees payable in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited Incremental Facility shall be determined by the terms Borrower and the arrangers and/or lenders providing such Incremental Facility;
(vii) the final maturity date with respect to any Incremental Facility shall be the Maturity Date;
(viii) the Weighted Average Life to Maturity of this Agreement, any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Facilities (without giving effect to any prepayment thereof);
(ix) no Incremental Facility may be (A) no Event guaranteed by any Person that is not a Loan Party or (B) secured by any asset other than the Collateral;
(x) any Incremental Term Facility may participate (A) in any voluntary prepayment of Default Term Loans as set forth in Section 2.11 on a pro rata basis (but not greater than pro rata basis) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.12 on a pro rata basis (but not greater than pro rata basis) with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xi) the conditions set forth in Section 5.2(a) and (b) hereof shall exist immediately prior to or be satisfied after giving effect to the incurrence or implementation of the relevant Incremental Facility as if such Incremental Revolving Facility and incurrence or implementation constituted a “Credit Extension”;
(Bxii) the representations and warranties Borrower shall be in compliance with each of the Loan Parties financial covenants set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or periodSection 7.1, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective datesthe incurrence or implementation of the relevant Incremental Facility;
(vixiii) the Consolidated Leverage Ratio of Holdings and its Subsidiaries shall be less than or equal to 1.75:1.00 (it being agreed that the Consolidated Leverage Ratio shall be calculated without netting the proceeds of such Incremental Facility and treating any Incremental Revolving Facility as being fully drawn), after giving effect to the incurrence or implementation of the relevant Incremental Facility;
(xiv) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose use not prohibited by this Agreement;
(xv) on the date of the Borrowing of any Incremental Term Loans, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans; and
(viixvi) at no time shall there be more than three separate Maturity Dates in effect with respect to the aggregate principal amount of Incremental Revolving Facilities and any other Additional Revolving Facility at any timeshall not exceed $5,000,000.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Incremental Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, any Issuing Lender and any Issuing Bank Swingline Lender) shall have consented a right to consent (such consent not to be unreasonably withheld withheld, conditioned or delayed) to the relevant Additional Revolving Incremental Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) 10.6 for an assignment of Revolving Loans to such Additional Revolving Incremental Lender.
(c) Each Lender or Additional Revolving Incremental Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such the relevant Incremental Revolving Commitment, each Additional Revolving Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Incremental Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) questionnaire and such other documents as it shall reasonably and customarily require from such Additional Revolving Incremental Lender, (iii) the Administrative Agent and the Incremental Lenders shall have received be entitled to receive all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) the Administrative Agent shall have received a Notice of Borrowing as if the relevant Incremental Loans were subject to Section 2.2 or Section 2.5 and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) thereof certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(e) Notwithstanding anything to the contrary in this Section 2.26 or in any other provision of any Loan Document, the conditions to availability or funding of any Incremental Facility shall be determined by the relevant Incremental Lenders providing such Incremental Facility and the Borrower.
(f) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.26, (i) Each each Revolving Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and (B) participations hereunder in Swingline Loans, as applicable, Loans shall be held on a pro rata basis on the basis of their respective Revolving Commitments of the applicable class (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.222.26) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments of such Class (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.222.26); it being understood and agreed 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 (ef).
(fg) The Lenders hereby irrevocably authorize such amendments to this Agreement the Administrative Agent to, and the Administrative Agent shall (without the consent of any Lenders (other than those providing the applicable Incremental Facility)), enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches necessary, appropriate or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate advisable in the reasonable opinion of the Administrative Agent. In addition, the Incremental Facility Amendment with respect to any Incremental Term Facility may, without the consent of any Lenders (other than those providing such Incremental Term Loans) or the Administrative Agent, include such amendments to this Agreement as may be necessary, appropriate or advisable as reasonably determined by the Administrative Agent and the Lead Borrower in connection to make the applicable Incremental Term Loans “fungible” with the establishment of such new tranches or sub-tranches or relevant existing Term Loans (including by modifying the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionalityamortization schedule).
(h) This Section 2.22 2.26 shall supersede any provision in Section 2.18 or 9.02 Section 10.1 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (Airsculpt Technologies, Inc.), Credit Agreement (Airsculpt Technologies, Inc.)
Incremental Credit Extensions. (ai) The Lead At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) pursuant ), request to an Incremental Revolving Facility Amendment to increase the aggregate amount effect one or more additional tranches of Commitments of any existing Class of Commitments revolving credit commitments (any such increase, an “Incremental Revolving FacilityCredit Commitments” and the any related revolving credit loans thereunder, “Incremental Revolving Credit Loans”) or increases in an the aggregate principal amount not to exceed of the Revolving Credit Commitments under any existing Class (each such increase, a “Revolving Credit Commitment Increase”; together with the Incremental CapRevolving Credit Loans, “Incremental Revolving Credit Facilities”) from Additional Revolving Credit Lenders; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from that at the time to time between of each such request and upon the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms effectiveness of each Incremental Revolving Credit Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementAmendment, (A) no Event of Default shall exist immediately prior result therefrom, (B) the aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes incurred after the Closing Date would not exceed (x) $500,000,000 plus (y) an additional amount to or the extent that the Senior Secured First-Lien Net Leverage Ratio (treating all such Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes as Senior Secured First-Lien Indebtedness solely for purposes of calculating such Senior Secured First-Lien Net Leverage Ratio even if such Indebtedness would not otherwise constitute Senior Secured First-Lien Indebtedness) on a Pro Forma Basis after giving effect to the incurrence of any such proposed Incremental Revolving Credit Facilities and any related transactions (treating any proposed Incremental Revolving Credit Facilities and Additional Notes that are “revolving” in nature as fully drawn, but not including the proceeds of any proposed Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes in the amount of cash to be netted in calculating such ratio) would be less than or equal to 4.0:1.0 as of the end of the most recently ended Test Period, (C) the Borrower shall be in compliance on a Pro Forma Basis (treating any proposed Incremental Revolving Credit Facility as fully drawn, but not including the proceeds of any such deemed draw in the amount of cash to be netted in calculating such ratio) with the Financial Performance Covenant as of the end of the most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time), (D) (i) in the case of any Incremental Revolving Credit Loans, the maturity date thereof shall be no earlier than the Revolving Credit Maturity Date, such Incremental Revolving Facility Credit Loans shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date and (Bii) any Revolving Credit Commitment Increase shall be on the same terms (and pursuant to the same documentation) governing the Revolving Credit Commitments pursuant to this Agreement (including upfront fees, but excluding customary arranger fees), (E) the representations and warranties of interest rate margins and, subject to clause (D), the Loan Parties set forth in this Agreement amortization schedule applicable to any Incremental Revolving Credit Loans shall be determined by the Borrower and the other Loan Documents Lenders thereunder; provided that in the event that the Effective Yield for any Incremental Revolving Credit Loans is higher than the Effective Yield for the Revolving Credit Loans by more than 50 basis points, then the Effective Yield for the Revolving Credit Loans shall be true and correct in all material respects on and as of increased to the date of extent necessary so that such Effective Yield is equal to the initial Borrowing under Effective Yield for such Incremental Revolving Credit Loans minus 50 basis points; provided, further, that, in determining the Effective Yield applicable to the Incremental Revolving Credit Loans incurred pursuant to such Incremental Revolving Credit Facility and the Revolving Credit Loans, (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID for purposes of this determination) payable by the Borrower to the Revolving Credit Lenders or any Additional Revolving Credit Lenders (with OID being equated to interest based on assumed four-year life to maturity) shall be included, (y) customary arrangement or commitment fees payable to the Joint Bookrunners (or their Affiliates) in connection with this Agreement or to one or more arrangers (or their Affiliates) of any Incremental Revolving Credit Loans shall be excluded and (z) if the Incremental Revolving Credit Loan includes an interest rate floor greater than the interest rate floor applicable to the Revolving Credit Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Revolving Credit Loans shall be required, to the extent an increase in the interest rate floor in the Revolving Credit Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor applicable to the Revolving Credit Loans shall be increased by such increased amount and (F) any Incremental Revolving Credit Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Credit Lenders with the same effect as though such representations and warranties had been made on and as of such dateapplicable Incremental Revolving Credit Facilities; provided that to the extent that any representation such terms and warranty specifically refers documentation are not consistent with this Agreement (except to a given date or periodthe extent permitted by clauses (D) and (E) above), it they shall be true reasonably satisfactory to the Administrative Agent; provided further that no L/C Issuer or Swing Line Lender shall be required to act as “issuing bank” or “swingline lender” under any such Incremental Revolving Credit Facility without its written consent. Each Incremental Revolving Credit Facility shall be in a minimum principal amount of $5,000,000 and correct integral multiples of $1,000,000 in excess thereof unless such amount represents all material respects the remaining availability under the aggregate principal amount of Incremental Revolving Credit Facilities set forth above.
(ii) At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make a copy of such notice available to each of the Lenders), request to effect one or more additional tranches of term loans hereunder (“Incremental Term Loans”) or increases in the aggregate amount of the Term Commitments of any existing Class, which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase”; together with the Incremental Term Loans, the “Incremental Term Facilities”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (A) no Event of Default shall result therefrom, (B) the aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes incurred after the Closing Date would not exceed (x) $500,000,000 plus (y) an additional amount to the extent that the Senior Secured First-Lien Net Leverage Ratio (treating all such Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes as Senior Secured First-Lien Indebtedness solely for purposes of calculating such Senior Secured First-Lien Net Leverage Ratio even if such Indebtedness would not otherwise constitute Senior Secured First-Lien Indebtedness) on a Pro Forma Basis after giving effect to the incurrence of any such proposed Incremental Term Facility and any related transactions (treating any proposed Incremental Revolving Credit Facilities and Additional Notes that are “revolving” in nature as fully drawn, but not including the proceeds of any proposed Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes in the amount of cash to be netted in calculating such ratio) would be less than or equal to 4.0:1.0 as of the end of the most recently ended Test Period, (C) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant as of the end of the most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time), (D) the maturity date or of any such Incremental Term Facility shall not be earlier than the Term B Maturity Date, (E) the Weighted Average Life to Maturity of any such Incremental Term Facility shall not be shorter than the remaining Weighted Average Life to Maturity of the Term B Loans, (F) the interest rate margins and, subject to clause (E), the amortization schedule for any Incremental Term Facility shall be determined by the Borrower and the Additional Term Lenders thereunder; provided that in the event that the Effective Yield for any Incremental Term Facility is higher than the Effective Yield for the Term B Loans by more than 50 basis points, then the Effective Yield for the Term B Loans shall be increased to the extent necessary so that such Effective Yield is equal to the Effective Yield for such periodIncremental Term Facility minus 50 basis points; provided, further, that any representation that, in determining the Effective Yield applicable to the Incremental Term Facility and the Term B Loans (x) OID or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language upfront fees (which shall be true and correct (after giving effect deemed to any qualification thereinconstitute like amounts of OID) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited payable by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) Borrower to the relevant Term B Lenders or any Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would Term Lenders in the initial primary syndication thereof (with OID being equated to interest based on assumed four-year life to maturity) shall be required under Section 9.05(bincluded, (y) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender customary arrangement or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver commitment fees payable to the Administrative Agent and the Lead Borrower all such documentation Joint Bookrunners (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Documenttheir Affiliates) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
Agreement or to one or more arrangers (dor their Affiliates) As a condition precedent to the effectiveness of any Incremental Revolving Term Facility or shall be excluded and (z) if the making of any Incremental Revolving Term Facility includes an interest rate floor greater than the interest rate floor applicable to the Term B Loans, (i) upon its reasonable request, the Administrative Agent such increased amount shall have received customary written opinions be equated to interest margin for purposes of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, determining whether an administrative questionnaire, provided increase to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of interest margin for the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving LoansTerm B Loans shall be required, and
(B) to the extent applicablean increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect, certifying and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans shall be increased by such increased amount and (G) any Incremental Term Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Term Lenders with the applicable Incremental Term Facilities; provided that to the condition extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clause (F) above), they shall be reasonably satisfactory to the Administrative Agent. Each Incremental Term Facility incurred after the Closing Date shall be in a minimum principal amount of $10,000,000 and, except with respect to the Term Commitment Increase, integral multiples of $1,000,000 in excess thereof unless such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Facilities set forth in clause (a)(v) above has been satisfiedabove.
(i) Each Lender notice from the Borrower pursuant to this Section shall set forth the requested amount of the applicable Class relevant Incremental Revolving Credit Loan, Revolving Credit Commitment Increase, Incremental Term Loan or Term Commitment Increase.
(ii) Commitments in respect of any Incremental Revolving Credit Loan or Revolving Credit Commitment Increase incurred after the Closing Date shall become Commitments (or in the case of any Revolving Credit Commitment Increase to be provided after the Closing Date by an existing Revolving Credit Lender, an increase in such Revolving Credit Lender’s Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Credit Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Revolving Credit Lenders and the Administrative Agent. Incremental Revolving Credit Loans and Revolving Credit Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Credit Facility or, unless it agrees, be obligated to provide any Incremental Revolving Credit Loan or Revolving Credit Commitment Increase) or by any other Additional Revolving Credit Lender. An Incremental Revolving Credit Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Credit Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Revolving Credit Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Credit Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Revolving Credit Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(iii) Commitments in respect of any Incremental Term Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Term Lenders and the Administrative Agent. Incremental Term Facilities may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Term Facility or, unless it agrees, be obligated to provide any Incremental Term Loan or Term Commitment Increase thereunder) or by any other Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(i) Upon effectiveness of 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 relevant Incremental Additional Revolving Lender, and each relevant Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed providing a portion of such Lender’s participations hereunder in outstanding US Letters of Revolving Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to Commitment Increase (each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Sabre Corp), Amendment and Restatement Agreement (Sabre Corp)
Incremental Credit Extensions. (a) The Lead Borrower Parent may, at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (a) pursuant to an one or more additional tranches of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”) or (b) one or more increases in the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments Facility (any each such increase, an a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; provided that:
less than $50 million (i) no Incremental Revolving Commitment provided, that such amount may be less than $5,000,000,50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount.
(iib) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for the Incremental Term Loans shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Facility (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof.
(c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and 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 the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as separately agreed from time applicable, to time between such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the Lead Borrower and any case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, no an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility Term Loans or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan)Increases, the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreementso agrees.
(d) As a condition precedent Upon each increase in the Revolving Credit Commitments pursuant to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loansthis Section 2.14, (ia) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Credit Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such Class increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(ge) Notwithstanding anything to the contrary in this Section 2.22 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any other provision of any Loan Document, if Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the proceeds conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on the date of a “certain funds” basis.
(f) The effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to customary “SunGard” or reflect any Incremental Term Loans provided on a “certain funds” conditionalitybasis) and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Incremental Credit Increase is provided with the benefit of the applicable Loan Documents.
(hg) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (Outfront Media Minnesota LLC), Credit Agreement (CBS Outdoor Americas Inc.)
Incremental Credit Extensions. (a) The Lead Borrower or any Loan Party may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) with respect to any Term Loan Borrower, add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) with respect to any Revolving Borrower, add one or more new Classes of revolving commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower any Loan Party and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that no Loan Party shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Loan,
(iv) any such Incremental Revolving Loan)Facility shall either (i) be subject to the same terms and conditions as any then-existing Revolving Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors, and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (ii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the Initial Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by Parent) shall (x) be substantially identical to the Initial Revolving Facility, (y) reflect market terms and conditions (as determined by Parent in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto) or (z) be reasonably satisfactory to the Administrative Agent (unless its rights and interests are adversely affected in it being understood that if any material respect) financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other agent provision is (1) also added for the benefit of any then-existing Revolving Facility or arranger;(2) only applicable after the latest maturity of any then-existing Revolving Facility),
(ivv) the terms Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by Parent and the lender or lenders providing such Incremental Facility; provided that, in the case of each any broadly syndicated Dollar-denominated Incremental Revolving Term Facility will that is (x) originally incurred in reliance on clause (e) of the definition of “Incremental Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled to mature prior to the date that is one year after the Initial Term Loan Maturity Date, the Effective Yield applicable thereto may not be substantially identical to those more than 0.75% higher than the Effective Yield applicable to the Revolving Facility Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.75% per annum less than the Effective Yield with respect to such Incremental Facility; provided further that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may, at the election of Parent, be effected through an increase in the Alternate Base Rate floor or LIBO Rate floor applicable to such Initial Term Loans or an increase in the interest rate margin applicable to such Incremental Loans; provided further that the MFN Provision (1) shall not apply to Incremental Term Facilities having an aggregate principal amount not exceeding the greater of $325,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, (2) shall not apply to Incremental Term Facilities incurred more than six months after the Closing Date, (3) shall not apply to Incremental Term Facilities incurred in connection with a Permitted Acquisition or other permitted Investment, (4) shall not apply to Customary Term A Loans and (5) shall not apply to customary bridge loans with a maturity date of not longer than one year that are convertible or exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that are pari passu with the Initial Term Loans in right or payment and with respect to security (this clause (v), the “MFN Provision”),
(vi) the final maturity date with respect to any upfront feesIncremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the time of the incurrence thereof; provided, original issue discount that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or similar feesother Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vi);, (ii) Customary Term A Loans or (iii) Incremental Term Facilities having an aggregate principal amount outstanding not exceeding the greater of $655,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period,
(vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii), (ii) Customary Term A Loans or (iii) Incremental Term Facilities having an aggregate principal amount outstanding not exceeding the greater of $655,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period,
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by Parent and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) except as otherwise agreed by above, to the lenders providing the relevant Incremental Revolving Facility extent applicable, any fees payable in connection with any acquisition, investments Incremental Facility shall be determined by Parent and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, arrangers and/or lenders providing such Incremental Facility,
(x) (A) each Incremental Facility shall rank pari passu with the Initial Term Loans (in the case of any Incremental Term Facility) and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by Liens on any assets other than the Collateral,
(xi) any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b),
(xii) no Specified Event of Default shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Revolving Facility and (Bexcept in connection with any acquisition or other Investment or irrevocable repayment or redemption of Indebtedness, where no such Specified Event of Default shall exist at the time as elected by Parent pursuant to Section 1.04(e)),
(xiii) the representations and warranties of the Loan Parties except as otherwise set forth in this Agreement and the above or below, all other Loan Documents shall be true and correct in all material respects on and as terms of the date of the initial Borrowing under any such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that Term Facility, shall (x) be substantially identical to the extent that terms of any representation then-existing Term Facility, (y) reflect market terms and warranty specifically refers conditions (as determined by Parent in good faith) at the time of incurrence or issuance or (z) be reasonably satisfactory to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialitythe Administrative Agent,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixiv) the proceeds of any Incremental Revolving Facility may be used for working capital, Capital Expenditures and other general corporate purposes of Parent and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments and any other purpose not prohibited by this Agreement; the terms of the Loan Documents), and
(viixv) at no time on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall there be more than three separate Maturity Dates added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in effect each then outstanding borrowing of Initial Term Loans or Additional Term Loans, as applicable, of the same type with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timethe same Interest Period of the respective Class.
(b) Incremental Revolving Commitments may be provided by any existing Lender, Lender or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender Eligible Assignee being called an “Additional Revolving Lender”); provided that the Administrative Agent and (and, in the case of any Incremental Revolving Facility, each Issuing Bank Bank) shall have consented (such consent not to be unreasonably withheld withheld, conditioned or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower Parent all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) upon its request, the Administrative Agent shall have received a certificate of the applicable Borrower Borrower, signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(xii) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender’s) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei).; and
(fii) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agreeestablishes Revolving Credit Commitments of a new Class, (1) the availability thereof borrowing and repayment (except for (A) payments of interest and fees at different rates on any Revolving Facility, (B) repayments required upon the Maturity Date of any Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of any Revolving Credit Commitments (subject to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments shall be subject to customary “SunGard” made on a pro rata basis with any then-existing Revolving Facility, (2) all letters of credit issued under such Incremental Revolving Facility shall be participated on a pro rata basis by all Revolving Lenders and (3) any permanent repayment of Revolving Loans with respect to, and reduction or “certain funds” conditionality.
(h) This Section 2.22 shall supersede termination of Revolving Credit Commitments under, any provision in Section 2.18 or 9.02 to Revolving Facility after the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.e
Appears in 2 contracts
Sources: Credit Agreement (Reynolds Consumer Products Inc.), Credit Agreement (Reynolds Consumer Products Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver make a copy of such request notice available to each of the Lenders) pursuant ), request one or more additional tranches or, in consultation with the Administrative Agent, additions to an existing tranche of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”; the aggregate commitments thereunder, the “Incremental Term Loan Commitments”) or one or more increases in the amount of Commitments of any existing Class of Commitments the Revolving Commitment (any such increase, an a “Revolving Commitment Increase”; the commitments thereunder, the “Incremental Revolving FacilityCommitments” and, collectively, with the Incremental Term Loan Commitments, the “Incremental Commitments”); provided that (i) after giving effect to the making of such Incremental Term Loans or the incurrence of any Revolving Commitment Increase, the aggregate principal amount of all Incremental Term Loans and Incremental Revolving Commitments incurred pursuant to this Section 2.19 (together with any Incremental Equivalent Debt incurred pursuant to Section 7.03(s) after the Closing Date) shall not exceed (x) $346,000,000 (provided that $35,000,000 of such amount under this clause (x) shall solely be available for Revolving Commitment Increases) plus (y) an unlimited additional amount, so long as on a Pro Forma Basis after the incurrence of such Incremental Term Loans and such Incremental Revolving Commitments (A) if such Incremental Loan ranks pari passu in right of security on the Collateral with the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the First Lien Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 and (B) if such Incremental Loan ranks junior in right of security on the Collateral to the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the Senior Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 (it being understood that (1) any Incremental Loan may be incurred under clause (y) prior to clause (x) and regardless of whether there is capacity under clause (x), (2) to the extent that both clause (x) and clause (y) are available and the loans thereunderBorrower does not make an election, the Borrower will be deemed to have elected clause (y), (3) any amounts incurred under clause (x), the Revolving Facility, Sections 7.03(e), 7.03(m), 7.03(r), 7.03(t), 7.03(u), 7.03(z), 7.03(bb), 7.03(s)(x) or 7.03(w), in each case, together with any amounts incurred to fund original issue discount (“OID”) and upfront fees, that is concurrently incurred with, or incurred in a single transaction or series of related transactions with, amounts under clause (y) will not count as Indebtedness for the purpose of calculating the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, in clause (y) and (4) any portion of any Incremental Term Loans or any Incremental Revolving Loans”Commitments incurred in reliance on clause (x) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (y) if the Borrower meets the applicable First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, under clause (y) at such time on a Pro Forma Basis (for purposes of clarity, with any such reclassification having the effect of increasing the Borrower’s ability to incur Indebtedness under clause (x) on and after the date of such reclassification by the amount of Indebtedness so reclassified)); provided, further, that for purposes of the calculation of the First Lien Leverage Ratio and the Senior Secured Leverage Ratio used in determining the availability of Incremental Term Loans or Incremental Revolving Commitments under this Section 2.19(a), (i) any cash proceeds of any Incremental Term Loans or the Incremental Revolving Commitments, as applicable, then being incurred will not be netted for purposes of determining compliance with the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, and (ii) the full amount of any Incremental Revolving Commitments then being incurred shall be deemed to be Indebtedness then outstanding (whether or not then incurred). Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than $5,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,5,000,000 if such amount represents all remaining availability under the limit set forth in the preceding sentence).
(iib) except as separately agreed from time to time between The terms, provisions and documentation of the Lead Borrower and any Lender, no Lender Incremental Revolving Commitments shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar feesfees and, for the avoidance of doubt, any structuring, arrangement, underwriting or other similar fees not shared with all lenders providing the applicable Incremental Revolving Commitments) to the Revolving Commitments existing hereunder on the closing date of such Incremental Revolving Commitments. The following terms shall apply to any Incremental Term Loans established pursuant to an Incremental Amendment: (i) such Incremental Term Loans (A) shall rank pari passu in right of payment with all other Term Loans, (B) shall be secured by the Collateral on a pari passu or junior basis with all other Term Loans, (C) shall not be guaranteed by any person other than a Guarantor and (D) shall not be secured by any assets other than the Collateral, (ii) the maturity date of such Incremental Term Loans shall not be earlier than the Original Term Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be less than the remaining Weighted Average Life to Maturity of the then outstanding Initial Term Loans (provided that the effects of any scheduled amortization or prepayments made on the Initial Term Loans prior to the Increased Amount Date shall be disregarded);
, (iv) if such Incremental Term Loan ranks pari passu in right of security with the existing Term Loans, such Incremental Term Loan may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments under the Loan Documents, as specified in the applicable Incremental Amendment (provided, however, that any Incremental Term Loan may participate on a greater than pro rata basis, on a pro rata basis or on a less than pro rata basis in any voluntary prepayments), (v) subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Incremental Term Loan shall be determined by the Borrower and the lenders thereunder, (vi) the applicable all-in yield relating to any Incremental Term Loans incurred under clause (y) of Section 2.19(a) pursuant to such Incremental Amendment (each facility thereunder, an “Incremental Facility”), if such Incremental Term Loans are (A) secured on a pari passu basis with the Initial Term Loans and (B) made on or prior to the date that is eighteen (18) months after the Closing Date, shall not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum unless the all-in yield applicable to the Initial Term Loans is increased so that the all-in yield applicable to the applicable Incremental Facility does not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum; provided that, in determining the all-in yield applicable to the Initial Term Loans and the applicable Incremental Facility, (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the applicable Incremental Facility), (B) structuring, arrangement, underwriting, ticking and commitment and other fees not shared with all lenders providing the Initial Term Loans or the applicable Incremental Facility, and, if applicable, consent fees for an amendment paid generally to consenting lenders, shall be excluded and (C) if the Adjusted LIBO Rate in respect of such Incremental Facility includes a floor in excess of 1.00%, or the Alternate Base Rate in respect of such Incremental Facility includes a floor in excess of 2.00%, such excess shall be equated to interest margin for purposes of determining any increase to the applicable all-in yield under the Initial Term Loans (except to the extent such floor does not result in an increase in interest rate) and any increase in the all-in yield applicable to the Initial Term Loans required due to the application of such floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) such floor in respect of the Initial Term Loans, (vii) subject to clause (vi) above, any fees payable in connection with any such Incremental Term Loan shall be determined by the Borrower and the arrangers providing for such Incremental Term Loan and (viii) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisitionrequired or permitted above, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the all other terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and Term Loans (Bother than (1) provisions applicable only to periods after the representations and warranties Latest Maturity Date of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and then-existing Term Loans (as of the date of the initial Borrowing under incurrence of such Incremental Revolving Facility Term Loans) and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms (which shall be determined by the Borrower)) are either (I) customary market terms for Indebtedness of such type at the time of incurrence (taken as a whole) (as determined in good faith by the Borrower) or (II) substantially identical to, or when taken as a whole, are not materially more restrictive with respect to the same effect as though such representations and warranties had been made on and Restricted Group than the terms of the Term Loans (as of the date of incurrence of such date; provided Incremental Term Loans), in each case under this clause (viii)(II), unless the then-existing Term Loans (other than any then-existing Term Loans secured on a junior basis to the Incremental Term Loans) (as of the date of incurrence of the Incremental Term Loans) receive the benefit of such more favorable terms through the then Latest Maturity Date (for the avoidance of doubt, it is understood that to the extent that any representation and warranty specifically refers to a given date or periodfinancial maintenance covenant is added for the benefit of such Incremental Term Loans, it no consent shall be true and correct in all material respects as required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender Term Loans (other than any Disqualified Institutionthen-existing Term Loans secured on a junior basis to the Incremental Term Loans) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”then outstanding); provided that the Administrative Agent and any Issuing Bank Incremental Term Loan Facility secured on a junior basis to all other Term Loans shall have consented (such consent not be subject to be unreasonably withheld or delayed) a Second Lien Intercreditor Agreement. Notwithstanding anything to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans contrary in this Agreement, to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion the extent the terms of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment Term Loan or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, are favorable to the existing Lenders, such thatterms may be, after giving effect to each deemed assignment and assumption in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving or Classes of Loans to certain other Lenders without further amendment requirements, including, for the avoidance of such Class (including doubt, at the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all option of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to Borrower, any increase in the Commitment Applicable Margin relating to any existing Class to achieve “fungibility” with such existing Class of Loans.
(c) Each notice from the Borrower pursuant to this Section 2.222.19 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increase (each, an “Incremental Loan”); it being understood , as applicable, and agreed that (ii) the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply date on which the relevant increase is requested to become effective (the transactions effected pursuant to this clause (e“Increased Amount Date”).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Term Loan Amendment (Surgery Partners, Inc.), Credit Agreement (Surgery Partners, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower Borrowers may, at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an ), request one or more additional tranches of term loans (the commitments thereof, the “Incremental Revolving Facility Amendment to increase Term Commitments,” the aggregate amount of Commitments of any existing Class of Commitments (any loans thereunder, the “Incremental Term Loans,” and a Lender making such increaseloans, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansTerm Lender”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
(i) no after giving effect to the incurrence of such Incremental Revolving Commitment may Term Loans, the aggregate amount of Incremental Term Loans shall not exceed an amount equal to the sum of (x) $25,000,000 less the aggregate amount of Indebtedness incurred in reliance on clause (a)(x) of the definition of “Permitted Incremental Indebtedness” (provided that, for the avoidance of doubt, the amount available to the Borrowers pursuant to this clause (x) shall be available at all times and shall not be subject to any ratio test) plus (y) an unlimited amount at any time so long as, with respect to this clause (y) only, after giving effect to the incurrence of the Incremental Term Loans and any Permitted Incremental Indebtedness (assuming such amounts are secured by a pari passu Lien on the Collateral whether or not so secured) and the Fair Market Value of the Collateral to be purchased therewith, the Loan To Value Ratio — Additional Indebtedness is less than $5,000,000,the lesser of (x) 0.70 to 1.0 and (y) 1.1 times the Loan To Value Ratio — Actual at such time;
(ii) except the Incremental Term Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder; provided, however, that (i) any Incremental Term Commitments or Incremental Term Loans may provide for the prepayment of such Incremental Term Loans from Segregated Cash Collateral pursuant to the provisions of Section 2.23 without the requirement that the Borrowers prepay any other then outstanding Term Loans and (ii) any Incremental Term Loans entitled to the benefit of Segregated Cash Collateral shall be subject to Section 2.23.
(iii) the Incremental Term Loans shall not mature earlier than the Term Loan Maturity Date;
(iv) the Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Term Loans;
(v) the interest rates (including floors), yields, premiums, fees and discounts, and, subject to clauses (iii) and (iv) above, the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrowers and the applicable Incremental Term Lenders;
(vi) no Default or Event of Default shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Term Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or a Eurodollar Base Rate or ABR floor greater than 1.00% or 2.00%, respectively, in the case of any Incremental Term Loan, with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Term Facility) with respect to the Incremental Term Loans made thereunder (as separately agreed determined by the Borrowers and the applicable Incremental Term Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the Eurodollar Base Rate and ABR floors), original issue discount (equated to interest based on an assumed four-year life to maturity) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Term Loan, which shall not be included and equated to the interest rate) with respect to the existing Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Term Loans shall automatically be increased by the Incremental Yield Differential.
(b) Except as set forth in Section 2.19(a), the Incremental Term Loans shall be treated substantially the same as the Term Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Term Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from time the Borrowers to time between the Lead Borrower Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) Incremental Term Loans may be made by any Lender, existing Lender or any Additional Lender (provided that no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as make a Lender providing all or part portion of any Incremental Revolving Commitment or Incremental Revolving Term Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the each case on terms of each Incremental Revolving Facility will be substantially identical to those applicable permitted in this Section 2.19, and, to the Revolving Facility (other than extent not permitted in this Section 2.19, all terms and documentation with respect to any upfront fees, original issue discount or similar fees);
Incremental Term Loan which (vi) except as otherwise agreed by are materially more restrictive on the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement Borrowers and the other Loan Documents shall be true and correct in all material respects on and Restricted Subsidiaries, taken as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or periodwhole, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect those with respect to Incremental Revolving Facilities and the Term Loans made on the Closing Date (but excluding any other Additional Revolving Facility at any time.
terms applicable after the Term Loan Maturity Date) or (bii) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted relate to become provisions of a Lender mechanical (including any required consentswith respect to the Collateral and currency mechanics) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”)or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld withheld, conditioned or delayed) to the relevant Additional Revolving such Lender’s provision of making such Incremental Revolving Commitments Term Loans if such consent would be required under Section 9.05(b10.6(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion Lender. Commitments in respect of any Incremental Revolving Commitment Term Loans shall execute and deliver become Commitments under this Agreement pursuant to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment (an “Incremental Amendment”) to any this Agreement and, as appropriate, the other Loan Document) as may be reasonably required Documents, executed by the Administrative Agent Borrowers, each Lender agreeing to evidence and effectuate provide such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, if any, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to Lender, if any, and the effectiveness Administrative Agent. The Incremental Amendment may, without the consent of any Incremental Revolving Facility or the making of any Incremental Revolving Loansother Lenders, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrowers, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be (unless waived by the Additional Lender) subject to the satisfaction of each of the conditions set forth in connection with Section 4.2 (it being understood that all references to the establishment date of such new tranches extension of credit or sub-tranches or similar language in Section 4.2 shall be deemed to refer to the maintaining Incremental Facility Closing Date) and such other conditions as the parties thereto shall agree (the effective date of any such single trancheIncremental Amendment, in each case on terms consistent with an “Incremental Facility Closing Date”). The Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Section 2.22Agreement. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees.
(gd) Notwithstanding anything to the contrary in herein, this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.19 shall supersede any provision provisions in Section 2.18 Sections 2.12 or 9.02 10.1 to the contrary and shall, the Borrowers and the Administrative Agent may amend Section 2.12 to extent applicable, be subject in all respects to Section 1.11implement any Incremental Amendment.
Appears in 2 contracts
Sources: Credit Agreement (Navios Maritime Partners L.P.), Credit Agreement (Navios Maritime Midstream Partners LP)
Incremental Credit Extensions. (a) The Lead (i) At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make available such request notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of the Revolving Commitments hereunder) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansFacilities”) in an aggregate principal amount not to exceed the Incremental Capfrom Additional Revolving Lenders; provided that:
that (iA) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from at the time to time between of each such request and upon the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms effectiveness of each Incremental Revolving Facility will Amendment, no Default shall have occurred and be substantially identical to those applicable to continuing or shall result therefrom (or, in the Revolving Facility (other than with respect to case of the incurrence or provision of any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisitiona Limited Condition Acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default under Section 7.01(a), (b), (h) or (i) shall exist immediately prior have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (A) above and setting forth the applicable clause(s) of the definition of “Incremental Cap” utilized for such Incremental Revolving Facility, together with, to the extent utilizing clause (b) of the definition of “Incremental Cap,” reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or after giving effect to (b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA or Consolidated Interest Expense, as applicable, for the relevant period), (C) such Incremental Revolving Facility and (Bx) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects secured solely by Collateral on and as of a pari passu basis with or junior basis to the date of the initial Borrowing under such Incremental Initial Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; Loans (provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility is secured by junior Liens, the applicable parties shall have entered into the Junior Lien Intercreditor Agreement) or Incremental Revolving Loans shall otherwise be unsecured and (ivy) the Administrative Agent shall have received a certificate of the applicable Borrower signed not be guaranteed by a Responsible Officer thereof:
any Persons other than Loan Parties, (AD) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition except as set forth in clause (a)(vF) above has been satisfied.
(i) Each Lender of below, the interest rate margins, rate floors, fees, premiums and maturity applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to shall be applied to finance an acquisition determined by the Borrower and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility, provided that no Incremental Revolving Facility so agreeshall mature prior to the Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Revolving Maturity Date, (E) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the Administrative Agent, the availability thereof Borrower and the Additional Revolving Lenders, (F) in the case of an increase in the Revolving Commitments hereunder, the maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, such increase in the Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement and (G) subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 the express requirements herein, any Incremental Revolving Facility Amendment shall supersede any provision in Section 2.18 or 9.02 be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Revolving Facilities; provided that to the contrary extent such terms and shalldocumentation are not consistent with this Agreement (except to the extent permitted by clause (D) or (E) above), they shall be reasonably satisfactory to extent applicablethe Administrative Agent; provided, further, that no Issuing Bank shall be subject required to act as “issuing bank” and no Swingline Lender shall be required to act as a “swingline lender” under any such Incremental Revolving Facility without its written consent. Each Incremental Revolving Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all respects to Section 1.11the remaining availability under the Incremental Cap.
Appears in 2 contracts
Sources: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at At any timetime after the Closing Date, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) occasions, pursuant to an Incremental Facility Agreement, (i) the Term B Borrowers may add one or more new tranches of term facilities under the Term B Facility (each new tranche, a “New Incremental Term B Facility”) and/or increase the principal amount of the Term B Loans of any existing Class by requesting new commitments to provide such Term B Loans (each increase, an “Incremental Term B Increase Facility”, together with any New Incremental Term B Facility, “Incremental Term B Facilities” and any loans made thereunder, “Incremental Term B Loans”) and/or (ii) the Revolving Facility Amendment to Borrowers may increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such each increase, an a “Incremental Revolving FacilityCommitment Increase” (and the loans thereunder, “Incremental Revolving Loans”) and, together with any Incremental Term B Facility, “Incremental Facilities”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) unless the Administrative Agent otherwise agrees, no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower Representative and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) except as otherwise permitted herein (including as provided in clauses (vi) through (x) below), the terms of each any Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Term B Facility (other than any terms which are applicable only after the Maturity Date of each then-existing Class of Term B Loans) must be substantially consistent with those applicable to any then-existing Class of Term B Loans or otherwise reasonably acceptable to the Administrative Agent,
(v) in the case of any Revolving Commitment Increase, each of the representations and warranties of the Borrowers contained herein shall be true and correct in all material respects as of the date of such Incremental Facility Agreement,
(vi) (A) any Incremental Term B Increase Facility shall be on the same terms (including maturity date and interest rates, but excluding upfront fees and original issue discount) applicable to such Class of Term B Loans and (B) the terms of any Revolving Commitment Increase shall be on the same terms (including maturity date and interest rates, but excluding upfront fees and original issue discount) and pursuant to the same documentation (other than the relevant Incremental Facility Agreement) applicable to such Class of Revolving Credit Commitments,
(vii) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the relevant Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any New Incremental Term B Facility that is pari passu with the Initial Term B Loans in right of payment and with respect to security, the Effective Yield applicable thereto will not be more than 0.50% per annum higher than the Effective Yield in respect of the Initial Term B Loans unless the Effective Yield with respect to the Initial Term B Loans is adjusted to be equal to the Effective Yield applicable to such Indebtedness, minus 0.50% per annum,
(viii) the final maturity date with respect to any upfront fees, original issue discount or similar fees);Incremental Term B Loans shall be no earlier than the Latest Term B Loan Maturity Date,
(vix) the Weighted Average Life to Maturity of any Incremental Term B Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term B Loans (without giving effect to any prepayments thereof),
(x) (A) any Incremental Term B Facility shall rank pari passu with or junior to any then-existing Class of Term B Loans, in right of payment and security and (B) no Incremental Term B Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi) any prepayment (other than any scheduled amortization payment) of Incremental Term B Loans that are pari passu in right of payment and security with any then-existing Term B Loans that require ratable prepayment shall be made on a pro rata basis with such existing Term B Loans, except that the relevant Borrower and the lenders providing the relevant Incremental Term B Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis),
(xii) (A) no Event of Default under Sections 7.01(a), (f) or (g) then exists and (B) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisitionTerm B Facility, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no other Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and Term B Facility, and
(Bxiii) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility Term B Loans that will be of the same Class as any then-existing Class of Term B Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Term B Loans shall be added to (and constitute a part of, and, at the election of the relevant Borrower, have the same Interest Period as) each Borrowing of outstanding Term B Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Lender providing such Incremental Term B Loans will participate proportionately in each then-outstanding Borrowing of Term B Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term B Loans having Interest Periods (the duration of which may be used for working capital, general corporate purposes less than one month) that begin during an Interest Period then applicable to outstanding Eurodollar Rate Loans of the relevant Class and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments Facilities may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent (and, in the case of any Revolving Commitment Increase, the Swingline Lender and any Issuing Bank Bank) shall have consented a right to consent (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower Representative all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAgreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving LoansFacility, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such solvency certificates, reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Lender, (1) an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and (2) such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and the relevant Additional Lenders shall have received be entitled to receive all fees fees, if any, required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (ivv) the Administrative Agent shall have received be entitled to receive a certificate of the applicable each relevant Borrower signed by a Responsible Officer thereof:
(A) thereof certifying and attaching a copy of the resolutions adopted by the governing body of the applicable relevant Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfiedFacility.
(ie) Each Upon the implementation of any Revolving Commitment Increase pursuant to this Section 2.22 (A) each Revolving Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Commitment Increase Lender, and each relevant Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Commitment Increase Lender) (I) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and (II) participations hereunder in Swingline Loans, as applicable, Loans shall be held on a pro rata basis ratably on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22) and (iiB) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving FacilityCommitment Increase), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving FacilityCommitment Increase) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e);
(f) On the date of effectiveness of any Revolving Commitment Increase, the maximum amount of LC Exposure and Swingline Loans permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank, the Swingline Lender and the relevant Borrower.
(fg) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this enter into any Incremental Facility Agreement and the and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower Representative in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (Brookfield Property REIT Inc.), Credit Agreement (Brookfield Property REIT Inc.)
Incremental Credit Extensions. (a) The Lead At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) ), pursuant to an Incremental Revolving Facility Amendment (“Incremental Amendment”) request to increase effect (i) one or more additional term loan facilities hereunder (which may take the form of delayed draw term loans) or increases in the aggregate amount of Commitments of any existing Class of Commitments the Term Facility (any each such increase, a “Term Commitment Increase”) from one or more Additional Term Lenders or (ii) one or more additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and the loans thereundertogether with any Term Commitment Increase, “any Incremental Term Facility and any Incremental Revolving LoansCredit Facility, a “Commitment Increase”) in an aggregate principal amount not to exceed the Incremental Capfrom Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(vA) except as otherwise agreed by the lenders Additional Term Lenders providing the relevant an Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of to finance a Specified Acquisition permitted under this Credit Agreement, (Ai) no Default or Event of Default shall have occurred and be continuing or would exist immediately prior to or after giving effect to such Incremental Revolving Facility thereto, and (Bii) the representations and warranties of made by the Loan Credit Parties set forth in this Agreement and pursuant to the other Loan Fundamental Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such (or in all respects, if qualified by materiality); provided that representations and warranties had been made on and that are expressly stated to be as of such date; provided that to the extent that any representation and warranty specifically refers to a given an earlier date or period, it shall be true and correct accurate in all material respects as of such earlier date (or for such period; providedin all respects, furtherif qualified by materiality) immediately prior to, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to to, the incurrence of such Incremental Facility,
(B) so long as any qualification therein) in all respects Revolving Credit Commitments or Term Loans are outstanding on such respective datesdate, on the date of the incurrence or effectiveness of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), the Parent shall be in compliance, on a Pro Forma Basis, with the financial ratios set forth in Section 7.9(a), (b) and (c) for the relevant fiscal quarter;
(viC) each Incremental Term Facility shall have a final maturity date no earlier than the Term Termination Date then in effect,
(D) the proceeds Average Life of any Incremental Term Loans shall not be shorter than the Average Life of the Term Loans then outstanding,
(E) any Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the commitments related thereto prior to, the Revolving Credit Termination Date then in effect and all other terms of any such Incremental Revolving Credit Facility shall be substantially identical to the Revolving Facility,
(F) all Incremental Term Facilities shall rank pari passu or junior in right of payment and right of security in respect of the Collateral with the Term Loans or may be used for working capitalunsecured; provided that to the extent any such Incremental Term Facilities are subordinated in right of payment or right of security, general corporate purposes or pari passu in right of security and subject to separate documentation, they shall be subject to an Intercreditor Agreement,
(G) no Incremental Facility shall be guaranteed by any Person which is not a Credit Party,
(H) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment with any then-existing Term Loans shall be made on a pro rata basis with such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the Additional Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), notwithstanding anything in this Credit Agreement or any other purpose not prohibited by this Agreement; Fundamental Document to the contrary,
(I) the Parent shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A) and (B), if applicable, above, together with, if applicable, reasonably detailed calculations demonstrating compliance with subclause (B) above, and
(viiJ) at no time shall there be more than three separate Maturity Dates in effect to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to Incremental Revolving Facilities pricing and fees and to the extent permitted by the foregoing clauses above and other than any other Additional Revolving Facility at any timeterms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases shall not exceed (i) the greater of (x) $200,000,000 and (y) 50% of Adjusted EBITDA as of the most recently ended Test Period, calculated on a Pro Forma Basis (in the case of each (x) and (y), less the aggregate principal amount of Incremental Equivalent Debt incurred pursuant to Section 7.1(c)(i)(B) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), the Net Total Leverage Ratio does not exceed 3.50 to 1.00, determined on a Pro Forma Basis after giving effect to such Commitment Increase and the application of the proceeds thereof and any related transaction, assuming (x) that all such Indebtedness incurred pursuant to such Commitment Increase (including the Incremental Equivalent Debt) is secured on a first lien basis even if not so secured, and (y) in the case of an Incremental Revolving Commitments may Credit Facility, such Incremental Revolving Credit Facility has been drawn in full as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be provided by any existing Lender, or by any other lender (other than any Disqualified Institutiondelivered pursuant to Section 6.1(a) who would be permitted to become a Lender (including any required consents) under and Section 9.05(b6.1(b) (any such other lender being called an amount under this clause (ii), the “Additional Revolving LenderRatio-Based Incremental Amount”); provided that any Incremental Facility may be incurred under either clause (i) or clause (ii) as selected by the Administrative Agent and Borrower in its sole discretion, including by designating any Issuing Bank shall have consented (such consent not portion of any Incremental Facility in excess of an amount permitted to be unreasonably withheld or delayedincurred under clause (ii) at the time of such incurrence as incurred under clause (i), and unless the Borrower otherwise elects, any portion of any Commitment Increase that could be established in reliance on this clause (ii) at the time of incurrence shall be deemed to have been incurred in reliance on the relevant Additional Revolving Lender’s provision Ratio-Based Incremental Amount without reducing the Fixed Dollar Incremental Amount (the total aggregate amount described under clauses (i) and (ii) hereof, the “Incremental Cap”). Each Commitment Increase shall be in a minimum principal amount of Incremental Revolving Commitments $10,000,000 and integral multiples of $1,000,000 million in excess thereof; provided that such amount may be less than $10,000,000 if such consent would amount represents all the remaining availability under the aggregate principal amount of Commitment Increases set forth above. No Lender shall be required under Section 9.05(b) for an assignment of Revolving Loans obligated to such Additional Revolving Lenderprovide any Commitment Increase unless it so agrees.
(c) Each Lender or Additional Revolving Lender providing a portion notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this AgreementCommitment Increase.
(d) As a condition precedent to Upon the effectiveness implementation of any Incremental Revolving Credit Facility or the making of any Incremental Revolving LoansCredit Commitment Increase pursuant to this Section 2.13, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental each Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Additional Revolving Lender, and each relevant Incremental Additional Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Participating Interests such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Additional Revolving Lender’s) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Participating Interests shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22Increase) and (iiB) the existing Revolving Lenders of the applicable Class or tranche shall assign Revolving Loans to certain other Revolving Lenders of such Class or tranche (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase), and such other Revolving Lenders (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class or tranche participate in each outstanding borrowing Borrowing of Revolving Loans of such Class or tranche pro rata on the basis of their respective Commitments of such Class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22Increase); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Credit Agreement shall not apply to the transactions effected pursuant to this clause the immediately preceding sentence.
(e)) Effective on the date of each Incremental Revolving Credit Facility the maximum amount of L/C Exposure permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Issuing Banks and the Borrower; provided that the L/C Exposure shall not exceed the Revolving Credit Commitment after giving effect to the Incremental Revolving Credit Facility.
(f) The Lenders hereby irrevocably authorize An Incremental Amendment may, subject to Section 2.13(a), without the consent of any other Lenders, effect such amendments to this Credit Agreement and the other Loan Fundamental Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrower, to effect the provisions of this Section 2.13 (including, in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental a Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shallCredit Commitment Increase, to extent applicable, be subject in all respects to Section 1.11reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders).
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Starz Entertainment Corp /Cn/), Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/)
Incremental Credit Extensions. (a) The Lead At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request to add one or more tranches of term A loans (the “Incremental Term A Loans”) pursuant to an or term B loans (the “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to increase any Specified Transaction consummated in connection therewith, the Nexstar Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitment, (B) the aggregate amount of Commitments the Nexstar Revolving Credit Commitment, (C) all Incremental Facilities consisting of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” Commitments and the loans thereunderIncremental Term A Loans, “and (D) Nexstar Incremental Facilities consisting of Nexstar Incremental Revolving Commitments and Nexstar Incremental Term A Loans”, shall not exceed $150,000,000.
(b) in an aggregate principal amount not The Incremental Facilities are subject to exceed the Incremental Cap; provided thatfollowing terms and conditions:
(i) no each Incremental Revolving Commitment may Facility shall have the same guarantees as, and be less than $5,000,000,secured on a pari passu basis by the same Collateral securing, the Obligations hereunder;
(ii) except as separately agreed from time no existing Lender will be required to time between the Lead Borrower and participate in any Lender, no Lender shall be obligated to provide any such Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such LenderFacility without its consent;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arrangerDefault would exist after giving effect thereto;
(iv) the terms maturity date of each any such Incremental Revolving Facility will Term B Loans (including any Refinancing Term Loans) shall be substantially identical no earlier than the Maturity Date of the Term B Loans and the Weighted Average Life to those applicable Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees)Term B Loans;
(v) except as otherwise agreed by in the lenders providing the relevant case of Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementCommitments, (A) the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no Event of Default shall exist immediately scheduled amortization or mandatory commitment reduction prior to or after giving effect the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility;
(vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility and shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with the same effect Revolving Credit Facility;
(vii) the interest rate margins, the maturity date of any Incremental Term A Loans and (subject to clauses (iv) and (vi) above, as though such representations appropriate) amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Facilities shall be determined by the Borrower and warranties had been made on and as of such datethe lenders thereunder; provided that in the event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that is incurred on or prior to the date that is 18 months after the Closing Date are higher than the interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that any representation and warranty specifically refers such interest rate margins are equal to a given date or period, it shall be true and correct in all material respects as of such date or the interest rate margins for such periodIncremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any representation Incremental Term A Loans, Incremental Term B Loans or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language Incremental Revolving Facility shall be true excluded, (B) original issue discount (“OID”) and correct upfront fees paid to the lenders thereunder shall be included (after giving with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to any qualification therein) in all respects on the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased to the extent of such respective datesdifferential between interest rate floors;
(viviii) any Incremental Term A Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the proceeds Term B Loans;
(ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans;
(x) any Incremental Term Loans or any Incremental Revolving Facility shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (iv), (vi), (vii), (viii) and (ix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and
(xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Facilities or Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”)Commitments; provided that such amount may be less than the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments applicable minimum amount if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderamount represents all the remaining availability hereunder as set forth above.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Revolving Lender”) and, if not already a Lender, shall become a Lender providing a portion under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Revolving Commitment Facilities shall execute and deliver become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lead Borrower Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all such documentation (including references to “the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender Credit Extension” in Section 4.02 shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent be deemed to refer to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requireClosing Date, (ii) the Administrative Agent Incremental Facility Closing Date shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided be deemed to such Additional Revolving Lender by be the Administrative Agent (the “Administrative Questionnaire”initial Credit Extension for purposes of Section 4.02(a) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicablethe proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, certifying that the condition set forth conditions in clause (a)(v) above has been satisfied.
(i) Each Lender Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of the applicable Class immediately prior to such increase any Incremental Term Loans and Incremental Term Loan Increases will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ used only for general corporate purposes (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit Permitted Acquisitions). The Administrative Agent and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Incremental Credit Extensions. (a) The Lead Borrower may, at any timetime after the Eighth Amendment Closing Date, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Facility Agreement, (i) add one or more new tranches of term facilities (each new tranche, a “New Incremental Term Facility”) and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (each increase, an “Incremental Increase Facility”; together with any New Incremental Term Facility, “Incremental Term Facilities” and any loans made pursuant to an Incremental Term Facilities, “Incremental Term Loans”) and/or (ii) add one or more new tranches of Incremental Revolving Facility Amendment to Commitments (each new tranche, a “New Incremental Revolving Facility”) and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such each increase, an a “Revolving Commitment Increase”; together with any New Incremental Revolving Facility, “Incremental Revolving Facilities” and, together with any Incremental Term Facility” , “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) unless the Administrative Agent otherwise agrees, no Incremental Revolving Commitment Facility may be less than $5,000,0001,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) except as otherwise permitted herein (including as provided in clause (xii) below), (A) the terms of each any Incremental Revolving Term Facility will (other than any terms which are applicable only after the Latest Term Loan Maturity Date) must be substantially identical to consistent with those applicable to any then-existing Class of Term Loans or otherwise, at the option of the Borrower, either (I) reflect, in the good faith determination of the Borrower, market terms and conditions (taken as a whole) at the time of incurrence of such Incremental Term Facility or (II) be reasonably acceptable to the Administrative Agent and (B) the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date) must be substantially consistent with those applicable to any then-existing Revolving Facility or otherwise, at the option of the Borrower, either (I) reflect, in the good faith determination of the Borrower, market terms and conditions (taken as a whole) at the time of incurrence of such Incremental Revolving Facility or (II) be reasonably acceptable to the Administrative Agent (it being understood that to the extent that any financial maintenance covenant or other term is added for the benefit of (A) any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other term is also added for the benefit of all Classes of Loans or (B) any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other term is also added for the benefit of each then-existing Revolving Facility),
(v) the Effective Yield (and the components thereof, including interest rate margins, rate floors, fees, premiums and funding discounts), currency types and denominations and any “MFN” terms or prepayment premiums applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that (A) in the case of any Incremental Term Facility that is secured by the Collateral on a pari passu basis with the Secured Obligations and incurred prior to the date that is 6 months following the Eighth Amendment Closing Date (other than, at the option of the Borrower, any Incremental Term Facility that, (I) is incurred to finance a Permitted Acquisition, Investment or similar transaction and/or (II) do not fall within clause (I) above in an aggregate amount not exceeding the greater of $430,000,000 and 100.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period), the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate with respect to the Initial Term Loans is adjusted to the extent necessary to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50%, and (B) the Applicable Rate for any Incremental Increase Facility shall be (x) the Applicable Rate for the Class being increased in connection therewith or (y) higher than the Applicable Rate for the Class being increased as long as the Applicable Rate for the Class being increased is automatically increased as and to the extent necessary to eliminate the deficiency,
(vi) the maturity date of any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that except with respect to customary prepayment terms in connection with customary escrow arrangements, (A) the final maturity date with respect to any upfront feesIncremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Initial Revolving Credit Maturity Date; provided that, original issue discount or similar feesat the option of the Borrower, (A) Incremental Facilities constituting Customary Bridge Loans and (B) Incremental Facilities incurred in the form of Term A Loans, in the case of each of clauses (A) and (B);, may be incurred without regard to this clause (vi),
(vvii) the amortization schedule for any Incremental Term Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that except as otherwise agreed with respect to customary prepayment terms in connection with customary escrow arrangements, the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any prepayments thereof); provided that, at the option of the Borrower, (A) Incremental Term Facilities constituting Customary Bridge Loans and (B) Incremental Facilities in the form of Term A Loans, in the case of each of clauses (A) and (B), may be incurred without regard to this clause (vii),
(viii) (A) any Incremental Term Facility or Incremental Revolving Facility shall be secured by a Lien on the Collateral that is pari passu with the Lien securing the Secured Obligations and (B) no Incremental Facility shall be (x) guaranteed by any Person other than a Loan Guarantor or (y) secured by any assets other than the Collateral,
(ix) any mandatory prepayment (other than any scheduled amortization payment) of Incremental Term Loans shall be made on a pro rata basis with all then-existing Term Loans, except that the Borrower and the lenders providing the relevant Incremental Revolving Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such mandatory prepayment on a less than pro rata basis (but not on a greater than pro rata basis),
(x) no Event of Default then exists (except in the case of the incurrence or provision of any Incremental Facility in connection with any acquisitiona Permitted Acquisition, investments and repayments, repurchases and redemptions of indebtedness Investment or similar transaction not prohibited by the terms of this AgreementAgreement or any Limited Condition Transaction, (A) in which case, no Specified Event of Default shall then exists or would exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialitythereto),” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixi) the proceeds of any Incremental Revolving Facility and/or any Incremental Term Facility may be used by the Borrower and its subsidiaries for working capital, capital and other general corporate purposes purposes, including the financing of Permitted Acquisitions and other Investments and any other purpose use not prohibited by this Agreement; ,
(xii) (A) any Incremental Increase Facility shall be on the same terms (including maturity date and interest rates) and pursuant to the same documentation (other than the relevant Incremental Facility Agreement) applicable to such Class of Term Loans, and (B) any Revolving Commitment Increase (x) shall be on the same terms (including maturity date and interest rates (except (i) if required to consummate such Revolving Commitment Increase, any increase in interest rates, rate floors and undrawn fees that is provided to all Lenders for such Class of Revolving Credit Commitments), but excluding upfront fees or similar fees) and pursuant to the same documentation (other than the relevant Incremental Facility Agreement) applicable to such Class of Revolving Credit Commitments and (y) shall not require any scheduled amortization or mandatory commitment reduction prior to the Maturity Date with respect to such Class of Revolving Credit Commitments, and
(viixiii) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiii) may result in new Incremental Term Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding Adjusted Term SOFR Loans of the relevant Class and any other Additional Revolving Facility at any timethat end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and (and, in the case of any Incremental Revolving Facility, any Issuing Bank and Swingline Lender) shall have consented a right to consent (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAgreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such solvency certificates, reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Lender, (1) an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”), and (2) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and the relevant Additional Lenders shall have received be entitled to receive all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(a)(x), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not, unless agreed by the Borrower, result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(x) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender’s) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis ratably on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22) and (iiB) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei).; and
(fii) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agreeestablishes a New Incremental Revolving Facility, then (A) the availability thereof borrowing and repayment (except (x) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Revolving Facility and (z) as provided in clause (C) below) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving Facility shall be subject to customary “SunGard” or “certain funds” conditionality.
made on a pro rata basis with all other Revolving Facilities, (hB) This Section 2.22 all Letters of Credit and Swingline Loans shall supersede any provision in Section 2.18 or 9.02 to be participated on a pro rata basis by all Revolving Lenders and (C) unless the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.relevant Additional Lend
Appears in 2 contracts
Sources: First Lien Credit Agreement (Waystar Holding Corp.), First Lien Credit Agreement (Waystar Holding Corp.)
Incremental Credit Extensions. (a) The Lead At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a by written request notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment ), request to increase the aggregate amount of Term Loans or add one or more additional tranches of term loans (any such Term Loans or additional tranche of term loans, the “Incremental Term Loans”), increase the Revolving Credit Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving FacilityIncrease”), and/or add one or more additional tranches of revolving credit commitments (the “Additional Revolving Credit Commitments” and and, together with the loans thereunderIncremental Revolving Increases, the “Incremental Revolving LoansCommitments”; and together with the Incremental Term Loans and each Incremental Revolving Increase, the “Incremental Facilities”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed the Incremental Cap. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not to exceed the Incremental Cap; provided less than $5,000,000, provided, that:
(i) no Incremental Revolving Commitment , such amount may be less than $5,000,000,the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as all of the other Obligations hereunder, will not be secured by any assets not constituting Collateral securing the Obligations hereunder and shall be secured by Liens ranking pari passu with the Liens securing the Obligations. No existing Lender shall be required to participate in any Incremental Facility; provided that the Lenders as of the Closing Date (or their applicable Affiliates or Approved Funds who are Lenders at such time) shall first be offered, by written request from the Borrower, the right to accept or reject (in each case in their sole discretion) the opportunity to provide on a pro rata basis any such Incremental Facility. After giving effect to any Incremental Revolving Commitments, the ratio of the Revolving Credit Facility and any Incremental Revolving Commitments to the Facilities (including any Incremental Facilities) as a whole shall not exceed the ratio of the Revolving Credit Facility to the Facilities as a whole as of the Closing Date. Neither the Borrower nor any of its Affiliates or the Permitted Holders shall participate in any Incremental Facility.
(b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of prepayments, shall be treated no more favorably than the Initial Term Loans, (ii) except as separately agreed from time shall have interest rate margins and (subject to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
clauses (iii) no Incremental Revolving Facility or Incremental Revolving Loan and (or iv)) amortization schedule as determined by the creationBorrower and the lenders thereunder (provided, provision or implementation thereof) shall require that, unless waived by the approval of any existing Lender (other than in its capacityRequired Lenders, if any, as a Lender providing all or part the Effective Yield of any Incremental Revolving Commitment or Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Revolving Loan)Facility Amendment by more than 0.50% per annum, the Administrative Agent Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (unless its rights and interests are adversely affected the “MFN Adjustment”); provided, further, that, any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any material respect) or any other agent or arranger;
(iv) Incremental Term Loan greater than the terms of each Incremental Revolving Facility will be substantially identical to those interest rate floor applicable to the Revolving Facility Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iii) other than with respect to any upfront feescustomary bridge facility so long as the long-term Indebtedness into which any such customary bridge facility is to be converted satisfies such limitations, original issue discount or similar fees);
any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term Loans, (iv) other than with respect to any customary bridge facility so long as the long-term Indebtedness into which any such customary bridge facility is to be converted satisfies such limitations, any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans and (v) except to the extent otherwise permitted by this Section 2.14, shall be on terms and pursuant to documentation to be determined by the Borrower and the lenders thereunder; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loans (except to the extent otherwise permitted in this Section 2.14), they shall either (A) not be materially more restrictive to the Borrower (as reasonably determined by the Borrower in good faith), when taken as a whole, than the terms and conditions applicable to the Initial Term Loans (in each case, unless the Lenders with respect to the Initial Term Loan receive the benefit of such more restrictive terms or conditions through their addition to this Agreement or to the extent that they apply solely to periods following the Latest Maturity Date with respect to the Initial Term Loans or (B) be reasonably satisfactory to the Administrative Agent.
(c) Any Additional Revolving Credit Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated no more favorably than the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments, and (v) except to the extent otherwise permitted by this Section 2.14, shall be on terms and pursuant to documentation to be determined by the Borrower and the lenders thereunder; provided, that to the extent such terms and documentation are not consistent with the Revolving Credit Commitments (except to the extent otherwise permitted in this Section 2.14), they shall either (A) not be materially more restrictive to the Borrower (as reasonably determined by the Borrower in good faith), when taken as a whole, than the terms and conditions applicable to the initial Revolving Credit Commitments (in each case, unless the Lenders with respect to the initial Revolving Credit Commitments receive the benefit of such more restrictive terms or conditions through their addition to this Agreement or to the extent that they apply solely to periods following the Latest Maturity Date with respect to the Revolving Credit Commitments or (B) be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Increases shall be on the same terms and pursuant to the same documentation as the Revolving Credit Commitments.
(d) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Facilities shall be reasonably satisfactory to the Borrower and the Administrative Agent and, in the case of Incremental Revolving Commitments, each L/C Issuer (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender, the Administrative Agent and, in the case of any Incremental Revolving Commitments, each L/C Issuer. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment and, in the case of Incremental Revolving Commitments, each L/C Issuer. Commitments in respect of any Incremental Term Loans and Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed by the lenders providing Borrower, the relevant Administrative Agent and each Additional Lender. For the avoidance of doubt, Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions Facilities shall be part of indebtedness not prohibited the Facilities governed by the terms Loan Documents.
(e) The effectiveness of this Agreementany Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (Aeach, an “Incremental Facility Closing Date”) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and each of the conditions set forth in Section 4.02 (Bit being understood that (i) the representations and warranties of the each Loan Parties Party set forth in this Agreement and the other Loan Documents shall be Section 4.02 being true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such (although any representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers which expressly relate to a given date or period, it period shall be true and correct in all material respects as of such the respective date or for the respective period, as the case may be) and all references to “such perioddate of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date and (ii) no Default or Event of Default shall have occurred and be continuing, or would result from such issuance of the Incremental Facility); provided, that, in the case of Incremental Facilities the proceeds of which will be used to finance (1) a Limited Condition Transaction, the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations; provided, further, that any representation or warranty that that, in the case of Incremental Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (x) no Event of Default shall have occurred and be continuing at the time the definitive agreement for such Limited Condition Transaction is qualified as to “materiality,” “Material Adverse Effect” or similar language entered into and (y) Section 4.02(b) shall be true and correct (after giving effect limited to any qualification therein) in all respects on such respective dates;
(vi) the Specified Events of Default. The proceeds of any Incremental Revolving Facility may Term Loans will be used for working capital, general corporate purposes (including (without limitation) Permitted Acquisitions) and for any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timehereunder.
(bf) Incremental Upon each increase in the Revolving Credit Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted under such Revolving Credit Facility pursuant to become a Lender (including any required consents) under this Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment2.14, each Additional Revolving Credit Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Lender providing a portion of the Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) in respect of such increase, and each relevant such Incremental Revolving Lender will automatically and without further act be deemed to have assumed assumed, a portion of such LenderRevolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding participations hereunder in Letters of Credit under such Revolving Credit Facility held by each Revolving Credit Lender (including each such Incremental Revolving Lender) participations hereunder in US Letters under such Revolving Credit Facility will equal the percentage of the aggregate Revolving Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. Additionally, if any Revolving Credit Loans are outstanding under a Revolving Credit Facility at the applicable class (time any Incremental Revolving Commitments are established under such Revolving Credit Facility, the Revolving Credit Lenders immediately after effectiveness of such Incremental Revolving Commitments shall purchase and assign at par such amounts of the Revolving Credit Loans outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender under such Revolving Credit Facility holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to any increase in the Commitment pursuant to Section 2.22) all such assignments. The Administrative Agent and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22immediately preceding sentence.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness Any portion of any Incremental Revolving Facility are intended incurred other than under the Incremental Incurrence Test shall be automatically reclassified at any time, as the Borrower may elect from time to be applied time, as incurred under the Incremental Incurrence Test if the Borrower meets the applicable ratio under the Incremental Incurrence Test at such time on a Pro Forma Basis at any time subsequent to finance an acquisition and the Lenders or Additional Revolving Lenders providing incurrence of such Incremental Revolving Facility so agree(or would have met such ratio, the availability thereof in which case, such reclassification shall be subject deemed to customary “SunGard” or “certain funds” conditionalityhave automatically occurred if not elected by the Borrower).
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower At any time and from time to time, subject to the terms and conditions set forth herein, the Borrowers may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request to add one or more additional tranches of term loans (the “Incremental Term Loans”) pursuant to an Incremental or one or more increases in the Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Credit Commitments (any such increase, an the “Incremental Revolving Facility” and Commitments”; together with the loans thereunderIncremental Term Loans, the “Incremental Facilities”), provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment no Default or Event of Default has occurred and is continuing or shall result therefrom. Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Loans”Commitments), together with the aggregate principal amount of all Permitted First Lien Secured Debt, shall not exceed the sum of (x) $350,000,000 plus (y) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (y)); provided that the Borrowers may incur unlimited additional Incremental Facilities and Permitted First Lien Secured Debt so long as, after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full) and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments, the First Lien Senior Secured Leverage Ratio shall not exceed 3.25:1.00. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not to exceed the less than $15,000,000 in case of Incremental Cap; provided that:
(i) no Term Loans or $15,000,000 in case of Incremental Revolving Commitment Commitments, provided that such amount may be less than $5,000,000,the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and be secured by the same Collateral securing, all of the other Obligations hereunder.
(b) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans and (ii) other than amortization, pricing or maturity date, shall have the same terms as the Term B Loans or such terms as are reasonably satisfactory to the Administrative Agent, provided that (A) except in the case of Refinancing Term Loans, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing the Term B Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the Term B Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (or 1.00% in the case of Term B-2 Loans), the Applicable Rate relating to the Term B Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Term Loans minus 0.50% (or 1.00% in the case of Term B-2 Loans); provided that, in the case of this clause (A), (i) if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under the Term B Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Term B Loans shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Term B Loans shall be increased to the extent of such differential between interest rate floors and (ii) in the case of Permitted First Lien Secured Debt that bears interest at a fixed rate, for purposes of Section 7.01(ee), such Permitted First Lien Secured Debt shall be swapped to a floating rate on a customary matched maturity basis as separately agreed is reasonably acceptable to the Administrative Agent, and such swapped rate shall be used to make the calculations set forth in this clause (A), (B) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Term B-1 Loans and (C) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term B-1 Loans.
(c) Any Incremental Revolving Commitment shall be on terms (other than pricing) and pursuant to the documentation applicable to the Revolving Credit Commitments; provided that except in the case of Refinancing Revolving Commitments, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Revolving Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Revolving Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing the Revolving Credit Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the Revolving Credit Commitments immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to the Revolving Credit Commitments shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity) payable to all Lenders providing such Incremental Revolving Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Revolving Commitments minus 0.50%; provided that, in the case of this clause (A), if the Incremental Revolving Commitments include an interest rate floor greater than the applicable interest rate floor under the Revolving Credit Commitments, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Revolving Credit Commitments shall be required, but only to the extent an increase in the interest rate floor in the Revolving Credit Commitments would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Revolving Credit Commitments shall be increased to the extent of such differential between interest rate floors.
(d) Each notice from time the Borrowers pursuant to time between this Section shall set forth the Lead Borrower requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Commitments shall be reasonably satisfactory to the Borrowers and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, no shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent and Topco (prior to a Trigger Event), Holdings, the Borrowers, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide provided any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility Term Loans or Incremental Revolving Loan (or the creationCommitments, provision or implementation thereof) shall require the approval of any existing Lender (other than unless it so agrees. Commitments in its capacity, if any, as a Lender providing all or part respect of any Incremental Revolving Commitment Term Loans or Incremental Revolving Loan)Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) Agent, to effect the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms provisions of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds Section. The effectiveness of any Incremental Revolving Facility may be used for working capitalAmendment shall, general corporate purposes and any other purpose not prohibited unless otherwise agreed to by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all such documentation (including references to “the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender Credit Extension” in Section 4.02 shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent be deemed to refer to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, Closing Date and (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (iiy) the Administrative Agent Incremental Closing Facility Closing Date shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required be deemed to be paid in respect the initial Credit Extension for purposes of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(BSection 4.02(a) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender proceeds of the applicable Class Incremental Facility are being used to finance a Permitted Acquisition). The proceeds of any Incremental Term Loans will be used only for general corporate purposes (including Permitted Acquisitions). Upon each increase in the Revolving Commitments 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 relevant Lender providing a portion of the Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each relevant such Incremental Revolving Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving Lender) participations hereunder in US Letters will equal the percentage of the aggregate Revolving Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) all Revolving Lenders represented by such Revolving Credit Lender’s Revolving Commitment. The Administrative Agent and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Kinetic Concepts Inc), Credit Agreement (KCI Animal Health, LLC)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (i) pursuant to an one or more tranches of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”), (ii) one or more increases in the aggregate amount of Commitments the Total Revolving Commitment (a “Revolving Commitment Increase”), and/or (iii) one or more new tranches of any existing Class of Commitments revolving commitments (any such increase, an “Incremental Revolving Facility” Commitments”, and together with the Incremental Term Loans and the loans thereunderRevolving Commitment Increases, the “Incremental Revolving LoansFacilities”) be made available under this Agreement, provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist. Each tranche of Incremental Term Loans and Incremental Revolving Commitments and each Revolving Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than $10,000,000 and shall be in an increment of $1,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,
10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans, Incremental Revolving Commitments and Revolving Commitment Increases shall not exceed $250,000,000 outstanding at any time. Each Incremental Facility shall (iia) except as separately rank pari passu in right of payment and of security, if any, with the Revolving Credit Loans and the other Incremental Facilities; (b) be subject to pricing and maturity agreed from time to time between by the Lead Borrower and the Lenders providing such Incremental Facility; and (c) not be subject to any scheduled or mandatory principal amortization prior to the Maturity Date (other than customary limited amortization for institutional term loans); provided that except for pricing and maturity (as limited by the preceding paragraph (c)), the terms and conditions applicable to the Incremental Facilities will be as set forth in this Agreement unless otherwise approved by the Administrative Agent. Each notice from the Borrower pursuant to this Section 2.28 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. In the case of an Incremental Term Loan Facility, the Lenders providing such Incremental Term Loans, with the consent of the Administrative Agent, may agree to allow the Borrower and its Subsidiaries and controlled Affiliates to become Eligible Assignees with respect to such Incremental Term Loans under circumstances, terms and conditions to be agreed at the time of incurrence but in all cases subject to Section 10.3(l). Incremental Term Loans may be made and Revolving Commitment Increases may be provided by any existing Lender (but no Lender will have an obligation to provide any portion of any Incremental Facility) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Incremental Lender”), provided that in the event the Lenders are providing a Revolving Commitment Increase or Incremental Revolving Commitments, the Administrative Agent, Issuing Lender and/or Swing Line Lender, no as applicable, shall have consented (not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Incremental Lender’s providing such Incremental Facility to the extent any such consent would be required under Section 10.3 for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Lender. Commitments in respect of Incremental Facilities shall become commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Fundamental Documents, executed by the Borrower, each Lender agreeing to provide such commitment, each Incremental Lender, if any, and the Administrative Agent. The Incremental Amendment may, with the consent of the Borrower and the Administrative Agent, effect such amendments to this Agreement and the other Fundamental Documents (including the amendment and restatement thereof and to provide Incremental Lenders with appropriate voting and loan assignment rights and other provisions reflecting the terms of the applicable Incremental Facility) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.28. The Borrower will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Facility unless it so agrees. Upon each increase in the Revolving Commitment shall execute and deliver Credit Commitments pursuant to the Administrative Agent and the Lead Borrower all such documentation this Section 2.28 (including the relevant Incremental a) each Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Credit Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such Class increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 10.4. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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. Each Incremental Lender shall become party to this clause (e)agreement upon acceptance by the Administrative Agent of an Incremental Lender Supplement signed by such Incremental Lender substantially in the form of Exhibit G-2.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hb) This Section 2.22 2.28 shall supersede any provision provisions in Section 2.18 or 9.02 10.9 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (Wyndham Worldwide Corp), Credit Agreement (Wyndham Worldwide Corp)
Incremental Credit Extensions. (a) The Lead Borrower Parent may, at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (a) pursuant to an one or more additional tranches of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”) or (b) one or more increases in the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments Facility (any each such increase, an a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; provided that:
less than $50 million (i) no Incremental Revolving Commitment provided, that such amount may be less than $5,000,000,50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount.
(iib) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof.
(c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and 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 the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as separately agreed from time applicable, to time between such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the Lead Borrower and any case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, no an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility Term Loans or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan)Increases, the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreementso agrees.
(d) As a condition precedent Upon each increase in the Revolving Credit Commitments pursuant to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loansthis Section 2.14, (ia) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Credit Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such LenderRevolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such Class increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(ge) Notwithstanding anything to the contrary in this Section 2.22 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any other provision of any Loan Document, if Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the proceeds conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on the date of a “certain funds” basis.
(f) The effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to customary “SunGard” or reflect any Incremental Term Loans provided on a “certain funds” conditionalitybasis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date.
(hg) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.)
Incremental Credit Extensions. (a) The Lead Borrower Parent may, at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (a) pursuant to an one or more additional tranches of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”) or (b) one or more increases in the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments Facility (any each such increase, an a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (ii) Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01. Each tranche of Incremental Term Loans and each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; provided that:
less than $50 million (i) no Incremental Revolving Commitment provided, that such amount may be less than $5,000,000,50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount.
(iib) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof.
(c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and 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 the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as separately agreed from time applicable, to time between such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the Lead Borrower and any case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, no an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility Term Loans or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan)Increases, the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreementso agrees.
(d) As a condition precedent Upon each increase in the Revolving Credit Commitments pursuant to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loansthis Section 2.14, (ia) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Credit Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such Class increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(ge) Notwithstanding anything to the contrary in this Section 2.22 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any other provision of any Loan Document, if Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the proceeds conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on the date of a “certain funds” basis.
(f) The effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to customary “SunGard” or reflect any Incremental Term Loans provided on a “certain funds” conditionalitybasis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date.
(hg) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.)
Incremental Credit Extensions. (a) The Lead At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request to add one or more tranches of term A loans (the “Incremental Term A Loans”) pursuant to an or term B loans (the “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to increase any Specified Transaction consummated in connection therewith, the Nexstar Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitment, (B) the aggregate amount of Commitments the Nexstar Revolving Credit Commitment, (C) all Incremental Facilities consisting of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” Commitments and the loans thereunderIncremental Term A Loans, “and (D) Nexstar Incremental Facilities consisting of Nexstar Incremental Revolving Commitments and Nexstar Incremental Term A Loans”, shall not exceed $350,000,000.
(b) in an aggregate principal amount not The Incremental Facilities are subject to exceed the Incremental Cap; provided thatfollowing terms and conditions:
(i) no each Incremental Revolving Commitment may Facility shall have the same guarantees as, and be less than $5,000,000,secured on a pari passu basis by the same Collateral securing, the Obligations hereunder;
(ii) except as separately agreed from time no existing Lender will be required to time between the Lead Borrower and participate in any Lender, no Lender shall be obligated to provide any such Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such LenderFacility without its consent;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arrangerDefault would exist after giving effect thereto;
(iv) the terms maturity date of each any such Incremental Revolving Facility will Term B Loans (including any Refinancing Term Loans) shall be substantially identical no earlier than the Maturity Date of the Term B-2 Loans and the Weighted Average Life to those applicable Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees)Term B-2 Loans;
(v) except as otherwise agreed by in the lenders providing the relevant case of Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementCommitments, (A) the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no Event of Default shall exist immediately scheduled amortization or mandatory commitment reduction prior to or after giving effect the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility;
(vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility and shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with the same effect Revolving Credit Facility;
(vii) the interest rate margins, the maturity date of any Incremental Term A Loans and (subject to clauses (iv) and (vi) above, as though such representations appropriate) amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Facilities shall be determined by the Borrower and warranties had been made on and as of such datethe lenders thereunder; provided that (x) in the event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that is incurred on or prior to the date that is 18 months after the Closing Date are higher than the interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points and (y) in the event that the total all in interest rate margins for any representation and warranty specifically refers Incremental Term B Loans (other than Refinancing Term Loans) that is incurred on or prior to a given the date or periodthat is 18 months after the Second Incremental Amendment Closing Date are higher than the interest rate margins for the Term B-2 Loans by more than (in any case) 50 basis points, it then the interest rate margin for the Term B-2 Loans shall be true and correct in all material respects as of increased to the extent necessary so that such date or interest rate margin is equal to the interest rate margin for such periodIncremental Term B Loans minus 50 basis points; provided, further, that that, in determining the interest rate margins applicable to the Incremental Term B Loans, the Term B Loans and the Term B-2 Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Term B-2 Loans, as applicable, or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any representation Incremental Term A Loans, Incremental Term B Loans or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language Incremental Revolving Facility shall be true excluded, (B) original issue discount (“OID”) and correct upfront fees paid to the lenders thereunder shall be included (after giving with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Term B-2 Loans, as applicable, or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans, the Term B-2 Loans, or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to any qualification therein) in all respects on the Term B Loan, the Term B-2 Loans, or the Revolving Credit Facility, as applicable, shall be increased to the extent of such respective datesdifferential between interest rate floors;
(viviii) any Incremental Term A Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the proceeds Term B Loans and the Term B-2 Loans;
(ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans and the Term B-2 Loans;
(x) any Incremental Term Loans or any Incremental Revolving Facility shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans, the Term B-2 Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (iv), (vi), (vii), (viii) and (ix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B-2 Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and
(xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Facilities or Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”)Commitments; provided that such amount may be less than the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments applicable minimum amount if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderamount represents all the remaining availability hereunder as set forth above.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Revolving Lender”) and, if not already a Lender, shall become a Lender providing a portion under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Revolving Commitment Facilities shall execute and deliver become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lead Borrower Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all such documentation (including references to “the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender Credit Extension” in Section 4.02 shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent be deemed to refer to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requireClosing Date, (ii) the Administrative Agent Incremental Facility Closing Date shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided be deemed to such Additional Revolving Lender by be the Administrative Agent (the “Administrative Questionnaire”initial Credit Extension for purposes of Section 4.02(a) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicablethe proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, certifying that the condition set forth conditions in clause (a)(v) above has been satisfied.
(i) Each Lender Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of the applicable Class immediately prior to such increase any Incremental Term Loans and Incremental Term Loan Increases will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ used only for general corporate purposes (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit Permitted Acquisitions). The Administrative Agent and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Incremental Credit Extensions. (ai) The Lead At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, either Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request make available to each of the Lenders) pursuant ), request to an Incremental Revolving Facility Amendment to increase the aggregate amount effect one or more tranches of Commitments of any existing Class of Commitments revolving commitments hereunder (any each such increasetranche, an “Incremental Revolving FacilityCommitment” and and, the loans thereunderLoans with respect thereto, “Incremental Revolving Loans”) or, if any Class of Revolving Commitments already exists, request to effect one or more increases in an the aggregate principal amount not to exceed the Incremental Capof such Revolving Commitments (each such increase, a “Revolving Commitment Increase”), in each case, from one or more Additional Revolving Lenders; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from that at the time to time between of each such request and upon the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms effectiveness of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementAmendment, (A) no Default or Event of Default shall exist immediately prior have occurred and be continuing or shall result therefrom, (B) such Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clause (A) above and (C) each Revolving Commitment Increase shall be on the same terms (including interest rate margins and maturity) governing any existing Class of Revolving Commitments pursuant to this Agreement or, if no such Revolving Commitments exist, each Incremental Revolving Commitment shall be on terms reasonably acceptable to such Borrower, the Additional Revolving Lenders and the Administrative Agent. Notwithstanding anything to contrary herein, at the time of effectiveness of any given Incremental Revolving Commitment, Revolving Commitment Increase or Term Commitment Increase, the sum of (i) the aggregate principal amount of the Incremental Revolving Commitments and the Revolving Commitment Increases entered into after the Effective Date and (ii) the aggregate principal amount of all Term Commitment Increases incurred after the Effective Date shall not exceed $250,000,000 plus up to an additional amount such that at the time of each such request and upon the effectiveness of the Incremental Revolving Facility Amendment or Incremental Term Facility Amendment, as applicable, after giving effect to such Incremental Revolving Facility Loans or Incremental Term Loans, as applicable, and the application of proceeds thereof, on a Pro Forma Basis, the Consolidated Secured Net Leverage Ratio is less than or equal to 1.50 to 1.00; (provided that, for purposes of calculating the Consolidated Secured Net Leverage Ratio (i) any Incremental Revolving Commitments or Revolving Commitment Increase being entered into shall be assumed to be fully drawn and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(viii) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of Commitment Increase or Term Commitment Increase being implemented and any such substantially concurrent Incremental Revolving Facility or the making of any Incremental Commitment, Revolving Loans, (iCommitment Increases and Term Commitment Increases shall not be netted from Consolidated Net Secured Debt) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative QuestionnaireIncremental Cap”) ). Each Incremental Revolving Commitment and Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such other documents as it amount may be less than $5,000,000 if such amount represents all the remaining availability under the Incremental Cap. For the avoidance of doubt, no Lender shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees be required to be paid in respect of provide any such Incremental Revolving Facility Commitment or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfiedCommitment Increase.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Constellium Holdco B.V.), Credit Agreement (Constellium Holdco B.V.)
Incremental Credit Extensions. (a) The Lead Any Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead relevant Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) except as otherwise permitted herein, (A) the terms of each any Incremental Revolving Term Facility will (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Term Loans) must be substantially identical to consistent with those applicable to any then-existing Term Loans or otherwise reasonably acceptable to the Administrative Agent and (B) the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date), must be substantially consistent with those applicable to any then-existing Revolving Facility or otherwise reasonably acceptable to the Administrative Agent,
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the relevant Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility that is pari passu with the Initial Term Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus, 0.50%,
(vi) (A) the final maturity date with respect to any upfront fees, original issue discount Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or similar fees);require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date,
(vvii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche of Term Loans (without giving effect to any prepayments thereof),
(viii) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with or junior to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment and/or security (it being understood that any Incremental Facility that is junior to the Initial Term Loans with respect to security shall be pari passu with, or junior to, the Second Lien Facility) or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment or security and documented in a separate agreement, it shall be subject to the Intercreditor Agreement, a Market Intercreditor Agreement or another intercreditor agreement that is reasonably satisfactory to the Administrative Agent) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(ix) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with such existing Term Loans, except that the relevant Borrower and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis),
(x) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of an acquisition or other Investment permitted under this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialityFacility,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixi) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other purpose use not prohibited by this Agreement; , and
(viixii) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Top Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding LIBO Rate Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Swingline Lender and any Issuing Bank Bank) shall have consented a right to consent (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Top Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received be entitled to receive all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(a)(x) and Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Top Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable relevant Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(x) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and (B) participations hereunder in Swingline Loans, as applicable, Loans shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei); and
(ii) if such Incremental Revolving Facility establishes Revolving Credit Commitments of a new Class, then (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Revolving Facility and (z) repayments made in connection with a permanent repayment and termination of the Revolving Credit Commitments under any Revolving Facility (subject to clause (C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Facilities, (B) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders and (C) any permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Revolving Facilities, except that the relevant Borrower shall be permitted to permanently repay Revolving Loans and reduce or terminate Revolving Credit Commitments under any Revolving Facility on a greater than pro rata basis as compared to any other Revolving Facilities with a later Maturity Date than such Revolving Facility.
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure and Swingline Loans permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank, the Swingline Lender and the relevant Borrower.
(g) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Top Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.22.
(gh) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hi) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Cotiviti Holdings, Inc.), First Lien Credit Agreement (Cotiviti Holdings, Inc.)
Incremental Credit Extensions. (a) The Lead At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request to add one or more tranches of term A loans (the “Incremental Term A Loans”) pursuant to an or term B loans (the “Incremental Term B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to increase any Specified Transaction consummated in connection therewith, the Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitment, (B) the aggregate amount of Commitments the Mission Revolving Credit Commitment, (C) all Incremental Facilities consisting of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” Commitments and the loans thereunderIncremental Term A Loans, “and (D) Mission Incremental Facilities consisting of Mission Incremental Revolving Commitments and Mission Incremental Term A Loans”, shall not exceed $350,000,000.
(b) in an aggregate principal amount not The Incremental Facilities are subject to exceed the Incremental Cap; provided thatfollowing terms and conditions:
(i) no each Incremental Revolving Commitment may Facility shall have the same guarantees as, and be less than $5,000,000,secured on a pari passu basis by the same Collateral securing, the Obligations hereunder;
(ii) except as separately agreed from time no existing Lender will be required to time between the Lead Borrower and participate in any Lender, no Lender shall be obligated to provide any such Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such LenderFacility without its consent;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arrangerDefault would exist after giving effect thereto;
(iv) the terms maturity date of each any such Incremental Revolving Facility will Term B Loans (including any Refinancing Term Loans) shall be substantially identical no earlier than the Maturity Date of the Term B-2 Loans and the Weighted Average Life to those applicable Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees)Term B-2 Loans;
(v) except as otherwise agreed by in the lenders providing the relevant case of Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementCommitments, (A) the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no Event of Default shall exist immediately scheduled amortization or mandatory commitment reduction prior to or after giving effect the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility;
(vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility and shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with the same effect Revolving Credit Facility;
(vii) the interest rate margins, the maturity date of any Incremental Term A Loans and (subject to clauses (iv) and (vi) above, as though such representations appropriate) amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Facilities shall be determined by the Borrower and warranties had been made on and as of such datethe lenders thereunder; provided that (x) in the event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that is incurred on or prior to the date that is 18 months after the Closing Date are higher than the interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points and (y) in the event that the total all in interest rate margins for any representation and warranty specifically refers Incremental Term B Loans (other than Refinancing Term Loans) that is incurred on or prior to a given the date or periodthat is 18 months after the Second Incremental Amendment Closing Date are higher than the interest rate margins for the Term B-2 Loans by more than (in any case) 50 basis points, it then the interest rate margin for the Term B-2 Loans shall be true and correct in all material respects as of increased to the extent necessary so that such date or interest rate margin is equal to the interest rate margin for such periodIncremental Term B Loans minus 50 basis points; provided, further, that that, in determining the interest rate margins applicable to the Incremental Term B Loans, the Term B Loans and the Term B-2 Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or Term B-2 Loans, as applicable, or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any representation Incremental Term A Loans, Incremental Term B Loans or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language Incremental Revolving Facility shall be true excluded, (B) original issue discount (“OID”) and correct upfront fees paid to the lenders thereunder shall be included (after giving with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or Term B-2 Loans, as applicable, or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans, the Term B-2 Loans, or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to any qualification therein) in all respects on the Term B Loans, the Term B-2 Loans, or the Revolving Credit Facility, as applicable, shall be increased to the extent of such respective datesdifferential between interest rate floors;
(viviii) any Incremental Term A Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the proceeds Term B Loans and the Term B-2 Loans;
(ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans and the Term B-2 Loans;
(x) any Incremental Term Loans or any Incremental Revolving Facility shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans, the Term B-2 Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (iv), (vi), (vii), (viii) and (ix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B-2 Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and
(xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Facilities or Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”)Commitments; provided that such amount may be less than the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments applicable minimum amount if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderamount represents all the remaining availability hereunder as set forth above.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Revolving Lender”) and, if not already a Lender, shall become a Lender providing a portion under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Intermediate Parent, the Ultimate Parent, the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Revolving Commitment Facilities shall execute and deliver become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lead Borrower Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all such documentation (including references to “the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender Credit Extension” in Section 4.02 shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent be deemed to refer to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requireClosing Date, (ii) the Administrative Agent Incremental Facility Closing Date shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided be deemed to such Additional Revolving Lender by be the Administrative Agent (the “Administrative Questionnaire”initial Credit Extension for purposes of Section 4.02(a) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicablethe proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, certifying that the condition set forth conditions in clause Section 4.02 may be subject to customary “SunGard” limitations). The proceeds of any Incremental Term Loans and Incremental Term Loan Increases will be used only for general corporate purposes (a)(v) above has been satisfied.
(i) Each including Permitted Acquisitions). Upon each increase in the Aggregate Commitments pursuant to this Section, each Revolving Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Lender providing a portion of the Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each relevant such Incremental Revolving Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving Lender) participations hereunder in US Letters will equal the percentage of the aggregate Revolving Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) all Revolving Credit Lenders represented by such Revolving Credit Lender’s Commitment. The Administrative Agent and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Incremental Credit Extensions. (a) The Lead (i) At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) pursuant ), request to an Incremental Revolving Facility Amendment to increase the aggregate amount effect one or more additional tranches of Commitments of any existing Class of Commitments revolving credit commitments (any such increase, an “Incremental Revolving FacilityCredit Commitments” and the any related revolving credit loans thereunder, “Incremental Revolving Credit Loans”) or increases in an the aggregate principal amount not to exceed of the Revolving Credit Commitments under any existing Class (each such increase, a “Revolving Credit Commitment Increase”; together with the Incremental CapRevolving Credit Loans, “Incremental Revolving Credit Facilities”) from Additional Revolving Credit Lenders; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from that at the time to time between of each such request and upon the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms effectiveness of each Incremental Revolving Credit Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementAmendment, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and result therefrom, (B) the representations aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and warranties of Additional Notes that can be incurred at any time shall not, at such time, exceed the Loan Parties set forth in this Agreement and Incremental Cap, (C) the other Loan Documents Borrower shall be true and correct in all material respects compliance on and a Pro Forma Basis (treating any proposed Incremental Revolving Credit Facility as fully drawn, but not including the proceeds of any such deemed draw in the amount of cash to be netted in calculating such ratio) with the Financial Performance Covenant as of the date end of the initial Borrowing under most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time), (D) (i) in the case of any Incremental Revolving Credit Loans, the maturity date thereof shall be no earlier than the Revolving Credit Maturity Date, such Incremental Revolving Credit Loans shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date and (ii) any Revolving Credit Commitment Increase shall be on the same terms (and pursuant to the same documentation) governing the Revolving Credit Commitments pursuant to this Agreement (including upfront fees, but excluding customary arranger fees) and (E) the interest rate margins and, subject to clause (D), the amortization schedule applicable to any Incremental Revolving Credit Loans shall be determined by the Borrower and the Lenders thereunder and (F) any Incremental Revolving Credit Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Credit Lenders with the same effect as though such representations and warranties had been made on and as of such dateapplicable Incremental Revolving Credit Facilities; provided that to the extent that any representation such terms and warranty specifically refers documentation are not consistent with this Agreement (except to a given date or periodthe extent permitted by clauses (D) and (E) above), it they shall be true and correct in all material respects reasonably satisfactory to the Administrative Agent; provided further that no L/C Issuer or Swing Line Lender shall be required to act as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effectissuing bank” or similar language “swingline lender” under any such Incremental Revolving Credit Facility without its written consent. Each Incremental Revolving Credit Facility shall be true in a minimum principal amount of $5,000,000 and correct (after giving effect to any qualification therein) integral multiples of $1,000,000 in excess thereof unless such amount represents all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) remaining availability under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision aggregate principal amount of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition Credit Facilities set forth in clause (a)(v) above has been satisfiedabove.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Term Loan Amendment (Sabre Corp), Tenth Term Loan B Refinancing Amendment (Sabre Corp)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (a) pursuant to an one or more additional tranches of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”), (b) one or more increases in the aggregate amount of Commitments of any existing Class of the Dollar Revolving Credit Commitments (any each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (ii) at the time when any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist. Each tranche of Incremental Term Loans and each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than a Dollar Amount of $25,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than a Dollar Amount of $5,000,000,
25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed the amount of additional Incremental Term Loans and Revolving Commitment Increases such that the Senior Secured Leverage Ratio for the Test Period immediately preceding the incurrence of such Indebtedness is less than or equal to 4.50 to 1.00 (calculated on a Pro Forma Basis) (the “Incremental Availability”). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans and (c) shall be treated substantially the same as the Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) except as separately agreed from time the interest rates and amortization schedule applicable to time between the Lead Incremental Term Loans shall be determined by the Borrower and any Lender, no Lender the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Term Loans. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be obligated to provide any Incremental Revolving Commitmentmade, and the determination to provide such commitments shall Revolving Commitment Increases may be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creationprovided, provision or implementation thereof) shall require the approval of by any existing Lender (other than in its capacity, if any, as it being understood that no existing Term Lender will have an obligation to make a Lender providing all or part portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment or Incremental Revolving LoanIncrease), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent (unless its rights and interests are adversely affected in any material respectAgent) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (bank or other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) financial institution (any such other lender bank or other financial institution being called an “Additional Revolving Lender”); , provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving such Lender’s provision of or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitments Commitment Increases if such consent would be required under Section 9.05(b10.07(b) for an assignment of Loans or Revolving Loans Credit Commitments, as applicable, to such Additional Revolving Lender.
(c) Each Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender providing a portion 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 Incremental Revolving Commitment shall execute other Lenders, effect such amendments to this Agreement and deliver to the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such documentation (including the relevant Incremental Revolving Facility Amendment Credit Extension” or an amendment similar language in such Section 4.02 shall be deemed to any other Loan Document) as may be reasonably required by the Administrative Agent refer to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”Amendment) and such other documents conditions as it the parties thereto shall reasonably and customarily require from such Additional Revolving Lender, (iii) agree. The Borrower shall use the Administrative Agent and Lenders shall have received all fees required to be paid in respect proceeds of such the Incremental Revolving Facility or Incremental Revolving Term Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed Revolving Commitment Increases for any purpose not prohibited by a Responsible Officer thereof:
this Agreement. Upon each increase in (A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting Dollar Revolving Credit Commitments pursuant to such Incremental Section 2.14, (x) each Dollar Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”) in respect of such increase, and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Dollar Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Dollar Letters of Credit and Swingline Loans(ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, as applicableon the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be held on a pro rata basis accompanied by accrued interest on the basis of their respective Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency 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 applicable class Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”) in respect of such increase, and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Commitment pursuant to Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.22) 3.05. The Administrative Agent and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hb) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (Biolectron, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), (i) pursuant to request one or more additional tranches of term loans (the commitments thereof, the “Incremental Term Loan Commitment”, the loans thereunder, the “Incremental Term Loans” and a Lender making such loans, an “Incremental Revolving Facility Amendment to increase Term Lender”) or (ii)(A) request one or more increases in the aggregate amount of Commitments of any existing Class of the Revolving Loan Commitments (any such increaseincrease or new commitment, a “Revolving Loan Commitment Increase”) and/or (B) the establishment of one or more new Revolving Loan Commitments (any such new commitment, a “New Revolving Loan Commitment” and, together with Revolving Loan Commitment Increases, the “Incremental Revolving Loan Commitments” and, such loans thereunder, the “Incremental Revolving Loans” and, a Lender making such a commitment, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansLender”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
(i) no The aggregate amount of Incremental Term Loans and Incremental Revolving Commitment may be less than $5,000,000,Loan Commitments incurred during the term of this Agreement shall not exceed the Maximum Incremental Facilities Amount;
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender No Person shall be obligated to provide an obligor under any Incremental Revolving Commitment, Facility that is not a Loan Party with respect to all Loans and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;Commitments,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or BothSubject to the creationCertain Funds Provision, provision or implementation thereof) shall require both at the approval time of any existing Lender (other than in its capacity, if any, as a Lender providing all or part such request and upon the effectiveness of any Incremental Revolving Commitment or Amendment referred to below, no Event of Default shall exist and be continuing at the time that any such Incremental Revolving Loan), the Administrative Agent Term Loan is made and (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (Aafter giving effect thereto) no Event of Default shall exist immediately prior to exist;
(iv) Incremental Term Loans or after giving effect to Incremental Revolving Loan Commitments may be denominated in Dollars or an Alternate Currency (it being understood that any such Incremental Revolving Facility and (B) the representations and warranties of the Term Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such or Incremental Revolving Facility with the same effect Loan Commitment may be utilized in Available Currencies as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct provided in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any applicable Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver Amendment which are acceptable to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Term Loans or Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Loan Commitments);
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Ancestry.com LLC), Credit and Guaranty Agreement (Ancestry.com LLC)
Incremental Credit Extensions. (a1) The Lead Borrower may, at any time, on Borrowers may from time to time after the Effective Date request one or more occasions deliver increases in the Revolving Credit Commitments (each, a written request “Revolving Credit Commitment Increase”); provided, however, that (A) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $500,000,000, (B) the aggregate amount of Revolving Credit Commitments shall not exceed $2,000,000,000 at any time and (C) each Revolving Credit Commitment Increase shall be in an amount not less than $20,000,000. Nothing in this Agreement shall be construed to obligate the Administrative Agent, any other Agent, any Arranger or any Lender to negotiate for (whether or not in good faith), solicit, provide or commit to provide any Revolving Credit Commitment Increase. The Administrative Agent shall promptly notify each Lender of each proposed Revolving Credit Commitment Increase. Each such Lender (and each of their Affiliates and Approved Funds) may, in its sole discretion, commit to participate in such Revolving Credit Commitment Increase by forwarding its commitment therefor to the Administrative Agent (whereupon in form and substance satisfactory to the Administrative Agent. The Administrative Agent shall, after consultation with the Parent Borrower, allocate, but in amounts not to exceed for each such Lender the commitment received from such Lender, Affiliate or Approved Fund, the Revolving Credit Commitment Increase commitments to be made as part of such Revolving Credit Commitment Increase to the Lenders from which it has received such written commitments. If the Administrative Agent shall promptly deliver a copy does not receive enough commitments from existing Lenders or their Affiliates or Approved Funds, it may, after consultation with the Parent Borrower, allocate to Eligible Assignees any excess of the proposed amount of such request to each Revolving Credit Commitment Increase agreed with the Parent Borrower over the aggregate amounts of the Lenders) pursuant to an Incremental commitments received from existing Lenders or their Affiliates or Approved Funds. Each Revolving Facility Amendment to increase Credit Commitment Increase shall become effective on a date agreed by the aggregate amount of Commitments of any existing Class of Commitments Parent Borrower and the Administrative Agent (any such increaseeach, an “Incremental Revolving Facility” Credit Extension Date”), which shall be in any case on or after the date of satisfaction of the conditions precedent set forth in Section 4.4. The Administrative Agent shall notify the Lenders and the loans thereunderParent Borrower, “on or before 1:00 p.m., New York City time, on the Business Day following an Incremental Credit Extension Date of the effectiveness of a Revolving Loans”) Credit Commitment Increase and shall record in an aggregate principal amount not to exceed the Incremental Cap; provided that:Register all applicable additional information in respect of such Revolving Credit Commitment Increase.
(i) no Incremental (A) The commitments under each Revolving Credit Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender Increase shall be obligated deemed for all purposes part of the Revolving Credit Commitments, (B) each Lender or Eligible Assignee participating in such Revolving Credit Commitment Increase shall become a Lender with respect to provide the Revolving Credit Commitments and all matters relating thereto and (C) the commitments under each Revolving Credit Commitment Increase shall have the same terms and conditions as the Revolving Credit Commitments. On the Incremental Credit Extension Date for any Revolving Credit Commitment Increase, each Lender or Eligible Assignee participating in such Revolving Credit Commitment Increase shall purchase and assume from each existing Lender having Revolving Loans outstanding on such Incremental Revolving CommitmentCredit Extension Date, without recourse or warranty, an undivided interest and participation, to the determination to provide such commitments shall be within the sole and absolute discretion extent of such Lender;
’s Ratable Portion of the new Revolving Credit Commitments (iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) Credit Commitment Increase), in the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental aggregate outstanding Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or periodLoans, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified so as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (ensure that, on the Incremental Credit Extension Date after giving effect to any qualification therein) in all respects such Revolving Credit Commitment Increase, each Revolving Lender is owed only its Ratable Portion of the Revolving Loans on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timeCredit Extension Date.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Incremental Credit Extensions. (a) The Lead Borrower may, Borrowers may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice by the Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase ), request one or more increases in the aggregate amount of Commitments of any existing Class of the Revolving Credit Commitments (any each such increase, an a “Revolving Commitment Increase”); provided that upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than $25,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,
(ii) except as separately agreed from time to time between 25,000,000 if such amount represents all remaining availability under the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties limit set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the date Revolving Commitment Increases shall not exceed $100,000,000 (the “Incremental Availability”). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the initial Borrowing under such Incremental relevant Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Commitment Increases. Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments Commitment Increases may be provided by any existing LenderLender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other lender (bank or other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) financial institution (any such other lender bank or other financial institution being called an “Additional Revolving Lender”); , provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving such Lender’s provision of Incremental or Additional Lender’s providing such Revolving Commitments Commitment Increases if such consent would be required under Section 9.05(b10.07(b) for an assignment of Loans or Revolving Loans Credit Commitments, as applicable, to such Additional Revolving Lender.
(c) Each Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrowers, each Lender providing a portion 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 Incremental Revolving Commitment shall execute other Lenders, effect such amendments to this Agreement and deliver to the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower Parent Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such documentation (including the relevant Incremental Revolving Facility Amendment Credit Extension” or an amendment similar language in such Section 4.02 shall be deemed to any other Loan Document) as may be reasonably required by the Administrative Agent refer to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”Amendment) and such other documents conditions as it the parties thereto shall reasonably and customarily require from such Additional agree. The Borrowers shall use Revolving LenderCommitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (iiix) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such Class increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hb) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (Biolectron, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, Agent may at any time, on one time or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between after the Lead Borrower and any LenderClosing Date, no Lender shall be obligated by written notice delivered to provide any Incremental the Administrative Agent, request one or more increases in the amount of Revolving CommitmentCredit Commitments (each such increase, and a “Revolving Commitment Increase”); provided that both at the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval time of any existing Lender (other than in its capacity, if any, as a Lender providing all or part such request and after giving effect to the effectiveness of any Incremental Revolving Commitment or Incremental Revolving Loan)Agreement referred to below, the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to and at the time that any such Incremental Revolving Facility Commitment Increase is made.
(b) Each Revolving Commitment Increase shall (i) be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below), (ii) be in minimum increments of $1,000,000 in excess thereof) and (Biii) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or periodnot, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) Revolving Commitment Increase, cause the proceeds aggregate principal amount of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect Credit Commitments hereunder to Incremental Revolving Facilities and any other Additional Revolving Facility at any timeexceed $200,000,000.
(bc) Incremental The Revolving Commitment Increase shall be treated as the same Class as the Revolving Credit Commitments and shall be considered to be part of the Revolving Credit Facility (it being understood that, if required to consummate a Revolving Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Revolving Credit Commitments may be provided increased and additional upfront or similar fees may be payable to the lenders providing the Revolving Commitment Increase).
(d) Each notice from the Borrower Agent pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower Agent, by any existing Lender, Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Commitment Increase) or by any other lender (bank, financial institution, other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Person that is an Eligible Assignee (any such other lender bank, financial institution or other Person being called an “Additional Revolving Lender”); provided that the Administrative Agent Agent, the L/C Issuers and any Issuing Bank the Swing Line Lender shall have consented (such consent consents not to be unreasonably withheld or delayed) to the relevant Additional Revolving such Lender’s provision of Incremental or Additional Lender’s providing such Revolving Commitments Commitment Increase if such consent would be required under Section 9.05(b10.07(b) for an assignment of Revolving Loans or Commitments to such Lender or Additional Revolving Lender.
(ce) Each Commitments in respect of Revolving Commitment Increase shall become Revolving Credit Commitments under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lender or agreeing to provide such Revolving Commitment Increase, each Additional Revolving Lender providing a portion Lender, if any, and the Administrative Agent. The Incremental Agreement may, subject to Section 2.14(c), without the consent of any Incremental Revolving Commitment shall execute and deliver other Lenders, effect such amendments to the Administrative Agent this Agreement and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) Documents as may be reasonably required by necessary or advisable in the reasonable opinion of the Borrower Agent and the Administrative Agent to evidence effect the provisions of this Section and effectuate such shall include a confirmation by the Maltese Borrower and any other Loan Party organized or existing under the laws of Malta that, for purposes of Article 1185 of the Maltese Civil Code, the Liens on the Collateral created by the Loan Documents shall not be impaired by the transactions effected pursuant to the Incremental Revolving CommitmentAmendment and shall be preserved for the benefit of all Lenders and the other Secured Parties. On The effectiveness of any Incremental Agreement shall be subject to the effective satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of such Incremental conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the loans under any Revolving Commitment, each Additional Revolving Lender shall become a Lender Commitment Increase for all purposes in connection with any purpose not prohibited by this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, The Borrowers shall not be obligated to offer any existing Lender the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, opportunity to provide any Revolving Commitment Increase.
(ii) Upon each increase in the Administrative Agent shall have receivedRevolving Credit Commitments pursuant to this Section, from each Additional Lender with a Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Lender providing a portion of the Revolving Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each relevant such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit Credit, Protective Advance and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving LenderA) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans(B) participations hereunder in Protective Advance and Swing Line Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the Aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, as applicable, shall be held on a pro rata basis on the basis date of their respective Commitments such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the applicable class proceeds of additional Revolving Credit Loans made hereunder (after giving effect to any reflecting such increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Credit Commitments of such Class (after giving effect to Class), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any increase costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22immediately preceding sentence.
(g) Notwithstanding anything This Section 2.14 shall supersede any provisions in Section 2.02(b) or 10.01 to the contrary in contrary. For the avoidance of doubt, any provisions of this Section 2.22 or in 2.14 may be amended with the consent of the Required Lenders; provided no such amendment shall require any other provision of Lender to provide any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing Commitment Increase without such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionalityLender’s consent.
(h) This Section 2.22 For purposes of Article 1185 of the Maltese Civil Code, it is expressly agreed that the Liens on the Collateral created under the Loan Documents shall supersede not be impaired by any provision transaction contemplated by this Section, including the deemed assignments provided for in Section 2.18 or 9.02 2.14(f)(ii), and shall be preserved for the benefit of all Lenders and the other Secured Parties, including any Person becoming a Lender pursuant to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11this Section.
Appears in 2 contracts
Sources: Abl Credit Agreement (King Digital Entertainment PLC), Abl Credit Agreement (King Digital Entertainment PLC)
Incremental Credit Extensions. (a) The Lead Any Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to add one or more new tranches of term facilities and/or increase the aggregate principal amount of Commitments the Loans of any existing Class of Commitments by requesting new commitments to provide such Loans (any such new tranche or increase, an “Incremental Revolving Facility” and the any loans thereundermade pursuant to an Incremental Facility, “Incremental Revolving Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead relevant Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) except as otherwise permitted herein, the terms of each any Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Loans) must be substantially consistent with those applicable to any then-existing Loans or otherwise reasonably acceptable to the Administrative Agent,
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the relevant Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Facility that is pari passu with the Initial Term Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus, 0.50%,
(vi) the final maturity date with respect to any upfront fees, original issue discount or similar fees);Incremental Loans shall be no earlier than the Latest Maturity Date,
(vvii) the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche of Loans (without giving effect to any prepayments thereof),
(viii) (A) any Incremental Facility may rank pari passu with or junior to any then-existing tranche of Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to any then-existing tranche of Loans in right of payment or security and documented in a separate agreement, it shall be subject to the Intercreditor Agreement, a Market Intercreditor Agreement or another intercreditor agreement that is reasonably satisfactory to the Administrative Agent) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party, (y) secured by any assets other than the Collateral or (z) rank senior to any then-existing tranche of Loans in right of payment or security,
(ix) any prepayment (other than any scheduled amortization payment) of Incremental Loans that are pari passu in right of payment and security with any then-existing Loans that require ratable prepayment shall be made on a pro rata basis with such existing Loans, except that the relevant Borrower and the lenders providing the relevant Incremental Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis),
(x) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of an acquisition or other Investment permitted under this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialityFacility,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixi) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other purpose use not prohibited by this Agreement; , and
(viixii) on the date of the Borrowing of any Incremental Loans that will be of the same Class as any then-existing Class of Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Top Borrower, have the same Interest Period as) each Borrowing of outstanding Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Lender providing such Incremental Loans will participate proportionately in each then-outstanding Borrowing of Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding LIBO Rate Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented a right to consent (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Top Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received be entitled to receive all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(a)(x) and Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Top Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable relevant Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(x) above has been satisfied.
(ie) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)[Reserved.]
(f) [Reserved.]
(g) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Top Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.22.
(gh) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hi) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Cotiviti Holdings, Inc.), Second Lien Credit Agreement (Cotiviti Holdings, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, or any Subsidiary Loan Party may at any timetime and from time to time after the Effective Date, on one or more occasions deliver a written request subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy i) one or more additional Classes of such request to each term loans or additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments same Class of any existing Class of term loans (which may include Incremental Delayed Draw Term Loans) (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (any each such increase, an “Incremental Revolving FacilityCommitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the loans thereunderIncremental Revolving Commitment Increases, the “Incremental Revolving LoansFacilities”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
(i) no , subject to Section 1.08, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderIncrease or Additional/Replacement Revolving Commitment is made or effected, no Lender shall be obligated to provide any Incremental Revolving CommitmentEvent of Default (or, and in the determination to provide such commitments shall be within case of the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility incurrence or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness an Acquisition Transaction or other Investment not prohibited by the terms of this Agreement, (A) no Event of Default under clause (a), (b), (h) or (i) of Section 7.01) shall exist immediately prior have occurred and be continuing or would result therefrom. Notwithstanding anything to the contrary herein, the sum of (i) the aggregate principal amount of Incremental Facilities and (ii) the aggregate principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Revolving Facility Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”).
(b) Each Incremental Term Loan shall comply with the following clauses (A) through (F):
(A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans (without giving effect to any previous amortization payments or prepayments of the Term Loans),
(B) subject to clause (F) below, the representations pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A) above, the maturity and warranties amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders,
(C) (i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to a Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower,
(D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except (i) to the extent permitted by clause (A) or (B) above or clause (E) or (F) below, (ii) as to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions and (iii) any funding conditions applicable to any Incremental Delayed Draw Term Facility), they shall either (I) taken as a whole, be not materially more favorable to the Lenders providing such Incremental Term Loan than the terms and conditions of the Loan Parties set forth Term Loans (when taken as a whole) are to the Lenders thereunder, (II) be applicable only to periods after the Latest Maturity Date at the time of such refinancing, (III) reflect market terms and conditions (taken as a whole) at the time of incurrence of such Indebtedness (as determined by the Borrower in this Agreement good faith); provided that if such Incremental Term Loans include any financial covenant that is more restrictive to the Borrower than the Financial Performance Covenant, then such financial covenant shall either (x) be applicable only to periods after the Latest Maturity Date or (y) be added for the benefit of any other Term Facility and the other Loan Documents Revolving Credit Facility, (IV) be reasonably satisfactory to the Administrative Agent or (V) be added, or the features of such term or provision shall be true and correct in all material respects on and as provided, for the benefit of any Loans or Commitments remaining outstanding thereafter (and, for the avoidance of doubt, such term shall be deemed reasonably satisfactory to the Administrative Agent) (provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days prior to the establishment of such Term Facility together with a reasonably detailed description of the date material terms and conditions of such resulting Indebtedness or drafts of the initial Borrowing under documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement),
(E) such Incremental Revolving Facility Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 (unless the Borrower and Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the Incremental Cap, and
(F) with respect to any Incremental Term Loans funded after the Effective Date that (i) are secured by a Lien on the Collateral that ranks pari passu with the same effect as though Liens securing the Term Loans, (ii) are incurred pursuant to the Free and Clear Incremental Amount (other than Incremental Term Loans incurred in reliance on either (x) the General Debt Basket Reallocated Amount or (y) any portion of the Free and Clear Incremental Amount under clause (c) or (d) thereof that is attributable to permanent commitment reductions of revolving credit facilities), (iii) mature on or prior to the Term Maturity Date, (iv) are incurred prior to the date that is six months after the Effective Date, (v) are in the form of dollar-denominated broadly syndicated floating rate term B loans and (vi) are not incurred or established in connection with any Acquisition Transaction or other Investment (provided that the Borrower may, in its sole discretion, exclude any Class of Incremental Term Loans from application of the MFN Protection to the extent such representations Class is in an aggregate initial principal amount not exceeding the greater of (x) $220,000,000 and warranties had been made on and (y) 200% of Consolidated EBITDA for the most recently ended Test Period as of such datetime determined on a Pro Forma Basis), in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 1.00% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 1.00% per annum (the “MFN Protection”); provided provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to Term SOFR, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable Term SOFR; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (w) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (w), to constitute like amounts of OID) payable by or on behalf of the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (x) (1) with respect to the Term Loans, to the extent that Term SOFR for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “Term SOFR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that Term SOFR for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required, (y) arrangement, structuring, ticking, commitment, amendment, unused line or underwriting fees or other similar fees payable in connection with the Term Loans or such Incremental Term Loans, as applicable, consent fees for an amendment (in each case regardless of whether any representation such fees are paid to or shared in whole or in part with any lender) and warranty specifically refers any other fees not paid to all relevant lenders generally with respect to such Indebtedness, shall be excluded and (z) the Applicable Rate for the Term Loans and the interest rate margin for the Incremental Term Loans shall be deemed to include the credit spread or similar adjustment, if any, applicable to a given date or period, it shall be true and correct in all material respects as of such date or for such periodone-month Term SOFR Borrowing; provided, further, that any representation increase in the Applicable Rate applicable to the Term Loans due to the application or warranty imposition of an interest rate floor on any such Incremental Term Loans may, at the election of the Borrower, be effected through either (1) an increase in the relevant interest rate floor applicable to the Term Loans or (2) an increase in the Applicable Rate applicable to the Term Loans; provided, further, that is qualified the MFN Protection may be waived at any time with the consent of the Required Class Lenders with respect to the applicable Class of Term Loans.
(c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to “materiality,” “Material Adverse Effect” maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar language fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be true secured only by a Lien on the Collateral securing the Secured Obligations and correct shall be guaranteed only by the Loan Parties, (after giving effect ii) except with respect to any qualification thereinAdditional/Replacement Revolving Commitments incurred pursuant to the Maturity Carveout Amount, shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in all respects on connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such respective dates;
commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the proceeds of any Incremental Revolving Credit Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as either (I) such financial maintenance covenant is applicable only to periods after the Latest Maturity Date or (II) the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or is only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(e) Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments.
(f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or, in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any Issuing Bank applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall have consented be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) to and, in the relevant Additional Revolving Lender’s provision case of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Revolvin
Appears in 2 contracts
Sources: Credit Agreement (Entrata, Inc.), Credit Agreement (Entrata, Inc.)
Incremental Credit Extensions. (a) The Lead At any time and from time to time after the Escrow Release Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) ), pursuant to an Incremental Revolving Facility Amendment (“Incremental Amendment”) request to increase effect (i) one (1) or more additional term loan facilities hereunder or increases in the aggregate amount of Commitments of any existing Class of Commitments Term Facility (any each such increase, a “Term Commitment Increase”) from one (1) or more Additional Term Lenders or (ii) up to two (2) additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and the loans thereundertogether with any Term Commitment Increase, “any Incremental Term Facility and any Incremental Revolving LoansCredit Facility, a “Commitment Increase”) in an aggregate principal amount not to exceed the Incremental Capfrom Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(vA) except as otherwise agreed by the lenders Additional Lenders providing the relevant an Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of to finance an Acquisition permitted under this Agreement, (A) no Default or Event of Default shall have occurred and be continuing or would exist immediately prior to or after giving effect to such Incremental Revolving Facility and thereto,
(B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under incurrence or effectiveness of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), the Borrower shall be in compliance, on a Pro Forma Basis, with the same financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided that, to the extent incurred in connection with an Acquisition, at the Borrower’s election, the Borrower’s compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.22 may be determined at the time of the signing of any acquisition agreement with respect thereto or at the time of the closing of such acquisition; provided, further that if the Borrower has made the election to measure such compliance on the date of the signing of an acquisition agreement, in connection with the calculation of any ratio with respect to the incurrence of Indebtedness or Liens, or the making of investments, Distributions, Restricted Debt Payments, asset sales, fundamental changes or the designation of an Unrestricted Subsidiary on or following such date and until the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated or expired (but not for the purposes of calculating any financial covenant), such ratio shall be calculated on a Pro Forma Basis assuming such Acquisition and any other Specified Transactions in connection therewith (including the incurrence of Indebtedness) have been consummated,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A Termination Date then in effect,
(D) each Incremental Term B Facility and each other Incremental Term Facility (other than an Incremental Term A Facility) shall have a final maturity date no earlier than the Term B Termination Date then in effect,
(E) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A Loans then outstanding,
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of the Term B Loans then outstanding,
(G) any Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the commitments related thereto prior to, the Revolving Credit Termination Date then in effect as though and all other terms of any such representations Incremental Revolving Credit Facility (except with respect to margin, pricing and warranties had been made on fees and as set forth in the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility) shall be substantially identical to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent,
(H) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to security with any then existing U.S. Term B Loans (or in the case of Incremental Term Loans denominated in Euros, any then existing Euro Term B Loans) (the “Relevant Existing Facility”), such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the Relevant Existing Facility unless the interest rate with respect to the Relevant Existing Facility is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity), shall be included, (x) any amendments to or changes in the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Closing Date but prior to the time of (or concurrently with) the addition of such dateIncremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Joint Lead Arrangers (or their affiliates) in their respective capacities as such in connection with the Relevant Existing Facility or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) all Incremental Facilities shall rank pari passu or junior in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans or may be unsecured; provided that to the extent that any representation such Incremental Facilities are subordinated in right of payment or right of security, or pari passu in right of security and warranty specifically refers subject to a given date or periodseparate documentation, it they shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as subject to “materialityintercreditor arrangements reasonably satisfactory to the Administrative Agent,” “Material Adverse Effect” or similar language
(J) no Incremental Facility shall be true and correct (after giving effect to guaranteed by any qualification therein) in all respects on such respective dates;Person which is not a Loan Party,
(viK) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment with any Disqualified Institutionthen-existing Term Loans shall be made on a pro rata basis with such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the Additional Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(L) who would be permitted the Borrower shall have delivered to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with subclause (B) above (which calculations shall, if made as of the last day of any Issuing Bank shall have consented (such consent fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be unreasonably withheld or delayed) to delivered by Section 6.1(e), be accompanied by a reasonably detailed calculation of Consolidated Adjusted EBITDA and Interest Expense for the relevant Additional Revolving Lender’s provision period), (M) all fees or other payments owing pursuant to Section 10.13 or as otherwise agreed in writing in respect of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver Increase to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loansbeen paid, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Loan Agreement (Western Digital Corp), Loan Agreement (Western Digital Corp)
Incremental Credit Extensions. (a) The Lead Borrower may, Company may at any time, on one time or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between after the Lead Borrower and any LenderClosing Date, no Lender shall be obligated by notice to provide any the Administrative Agent, request (i) the establishment of Incremental Term Loan Commitments and/or (ii) during the Revolving Credit Commitment Period, the establishment of Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, Credit Commitments; provided that (A) at the time of such request, no Default or Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid and expenses owing in respect of such Incremental Facility shall have been paid to the Administrative Agent. The aggregate amount of the Incremental Commitments established under this Section 2.22 together with the aggregate original principal amount of all Alternative Incremental Indebtedness incurred under Section 7.02(o) on any date shall not exceed an amount equal to the sum of (x) $100,000,000 plus (y) an additional amount such that, immediately after giving effect to the effectiveness of the applicable Incremental Amendment effectuating such Incremental Term Loans and/or Incremental Revolving Facility Credit Commitments, the First Lien Leverage Ratio shall not exceed 3.00 to 1.00, determined on a pro forma basis (excluding the cash proceeds of such incurrence and assuming that any Incremental Term Loans, Incremental Revolving Credit Commitments and Alternative Incremental Indebtedness are secured by a Lien on the assets of the Borrower, whether or not so secured) as of the last day of the most recent fiscal quarter for which financial statements are required to have been delivered hereunder, in each case, as if such Incremental Term Loans or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline LoansCommitments, as applicable, such thathad been outstanding, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and Credit Commitment, fully drawn, on the Lenders or Additional Revolving Lenders providing last day of such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionalityfiscal quarter for testing compliance therewith.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 2 contracts
Sources: Credit Agreement (Verint Systems Inc), Credit Agreement (Verint Systems Inc)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of term loans of any existing Class by requesting new commitments to provide such term loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of Revolving Credit Commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the any loans thereundermade pursuant to an Incremental Revolving Facility, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments any Incremental Commitment shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Revolving Facility, if not substantially consistent with those applicable to the 2024 Refinancing Revolving Facility or the terms of any Incremental Term Facility, if not substantially consistent with those applicable to the Amendment No. 23 Refinancing Term Facility, must, in each case, be reasonably acceptable to the Administrative Agent (unless its rights and interests it being agreed that any terms contained in such Incremental Facility (x) which are adversely affected in any material respectapplicable only after the then-existing Latest Maturity Date, (y) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable that are more favorable to the Revolving lenders or the agent of such Incremental Facility than those contained in the Loan Documents and are then conformed (other than with respect or added) to any upfront feesthe Loan Documents for the benefit of the Lenders or the Administrative Agent, original issue discount or similar feesas applicable, pursuant to the applicable Incremental Facility Amendment and/or (z) if such Incremental Facility is an Incremental Term Facility, notwithstanding anything herein to the contrary, relating to optional and mandatory prepayments that are customary and “market” for similarly situated borrowers at the time of incurrence, as determined by the Borrower in its reasonable discretion shall, in each case, be deemed satisfactory to the Administrative Agent);,
(v) except the Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated floating rate Dollar denominated term loan “B” Incremental Term Facility that is pari passu with the Amendment No. 23 Refinancing Term Loans in right of payment and security, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Amendment No. 23 Refinancing Term Loans unless the Applicable Rate with respect to the Amendment No. 23 Refinancing Term Loans is adjusted such that the Effective Yield on the Amendment No. 23 Refinancing Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Term Facility; provided, further, that the immediately preceding proviso shall not apply to (i) Incremental Term Facilities incurred more than twelve months after the Amendment No. 2 Closing Date, (ii) Incremental Term Facilities having an aggregate principal amount not exceeding the greater of $462,500,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, (iii) Customary Bridge Loans and (iv) Incremental Term Facilities incurred to refinance debt of the Borrower and its Restricted Subsidiaries (the immediately preceding proviso, as modified by this proviso, the “MFN Provision”),
(vi) (x) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date and (y) other than Customary Bridge Loans, no Incremental Term Facility may have a final maturity date earlier than the Latest Term Loan Maturity Date,
(vii) (x) no Incremental Revolving Facility shall have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of any then-existing Revolving Loans and (y) other than Customary Bridge Loans, no Incremental Term Facility shall have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of any then-existing Term Loans,
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise agreed have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) above, to the relevant Incremental Revolving Facility extent applicable, any fees payable in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited Incremental Facility shall be determined by the terms Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with or junior to any then-existing tranche of this term loans or Revolving Loans, as applicable, in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured, it shall be subject to an Acceptable Intercreditor Agreement, ) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi) [reserved],
(xii) (A) no Event of Default shall exist immediately prior to or after giving effect to the incurrence or implementation of such Incremental Revolving Facility; provided that notwithstanding the foregoing, in the case of any Incremental Facility incurred or implemented in connection with any acquisition, Investment or irrevocable payment or redemption of Indebtedness, the condition set forth in this clause (A) shall require only that no Event of Default under Section 7.01(a), (f) or (g) exist immediately prior to giving effect to such Incremental Facility and (B) the representations and warranties condition set forth in Section 4.02(b) hereof shall be satisfied after giving effect to the incurrence or implementation of the Loan Parties relevant Incremental Facility; provided that notwithstanding the foregoing, in the case of any Incremental Facility incurred or implemented in connection with any acquisition or similar Investment, the condition set forth in this Agreement clause (B) shall require only the making and the other Loan Documents shall be true and correct in all material respects on and as accuracy of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after Specified Representations before giving effect to any qualification thereinsuch acquisition or Investment; provided further that this clause (xii) shall be subject to Section 1.10(a) and (b) in all respects on such respective dates;respects, and
(vixiii) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments, Restricted Debt Payments and related fees and expenses) and any other purpose use not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Incremental Lender”); provided that the Administrative Agent and (and, in the case of any Incremental Revolving Facility, any Issuing Bank Bank) shall have consented a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Incremental Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Incremental Lender.
(c) Each Lender or Additional Revolving Incremental Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Incremental Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) Questionnaire and such other documents as it shall reasonably and customarily require from such Additional Revolving Incremental Lender, (iii) the Administrative Agent and Lenders shall have received all received, on behalf of the Incremental Lenders, the amount of any fees required payable to be paid the Incremental Lenders in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request, the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition conditions set forth in clause (a)(va)(xii) above has have been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (x) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (iiy) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei); and
(ii) if such Incremental Revolving Facility establishes Revolving Credit Commitments of a new Class, then (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Revolving Facility and (z) repayments made in connection with a permanent repayment and termination of the Revolving Credit Commitments under any Revolving Facility (subject to clause (C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, (B) all Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders and (C) any permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made with respect to such Incremental Revolving Facility on a pro rata basis or less than pro rata basis with all other Revolving Facilities, or, to the extent such Incremental Revolving Credit Commitments areCommitment is terminated in full and refinanced or replaced with a Replacement Revolving Facility or Replacement Debt, a greater than pro rata basis; provided, that subclauses (A) and (C) of this clause (e)(ii) shall only apply to any Incremental Revolving Facility that is pari passu with the 2024 Refinancing Revolving Facility in right of payment and security.
(f) On the date of effectiveness of any Incremental Revolving Facility, the Letter of Credit Sublimit shall increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent and the relevant Issuing Banks, as applicable; it being understood and agreed that the Borrower and any Lender providing any Incremental Revolving Facility may agree that such Lender will provide a portion of the Letter of Credit Sublimit in excess of its Applicable Percentage thereof.
(g) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.22, including, solely with respect to any Incremental Term Facility, the ability to include provisions applicable solely to such Incremental Term Facility, so long as such provisions are not otherwise prohibited by, or amendments are effectuated pursuant to the terms of, this Agreement.
(gh) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, but subject to Section 2.22(a)(xii), if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionalityconditionality (including the making and accuracy of the Specified Representations before giving effect to such acquisition or Investment).
(hi) This Section 2.22 shall supersede any provision in Section Sections 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Sources: Second Amended and Restated First Lien Credit Agreement (Shift4 Payments, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, Borrowers may at any time, time or from time to time on one or more occasions deliver a written after the Effective Date request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy i) one or more additional Classes of such request to each term loans (each, an “Incremental Term Facility”), (ii) one or more additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments same Class of any existing Class of term loans (each, an “Incremental Term Increase”), (iii) one or more increases in the amount of the Revolving Commitments of any Class (any each such increase, an “Incremental Revolving Commitment Increase”) and/or (iv) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility” , Incremental Term Increase and the loans thereunderIncremental Revolving Commitment Increases, the “Incremental Facilities”); provided that (x) after giving effect to any Incremental Facility Amendment referred to below and at the time that any such Incremental Facility is made or effected, no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, no Specified Event of Default) shall have occurred and be continuing and (y) in no event shall it be a condition to the effectiveness of, or borrowing under, any Incremental Facility that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the Additional Lenders providing such Incremental Facility. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrowers and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(i) The Incremental Term Facilities (a) shall (i) rank equal or junior in right of payment with the Amendment No. 1 Refinancing Term Loans, (ii) if secured, be secured only by the Collateral securing the Secured Obligations (except in the case of any Designated Alternative Security Debt) and (iii) only be guaranteed by the Loan Parties (except in the case of any Designated Alternative Security Debt), (b) except in the case of any Designated Earlier Maturing Debt, shall not mature earlier than the Term Maturity Date, (c) except in the case of any Designated Earlier Maturing Debt, shall not have a shorter Weighted Average Life to Maturity than the remaining Amendment No. 1 Refinancing Term Loans, (d) shall have a maturity date (subject to clause (b)), an amortization schedule (subject to clause (c)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by the applicable Borrower and the Additional Term Lenders thereunder; provided that, for any Incremental Revolving Loans”Term Facility that (x) is broadly syndicated to banks and other institutional investors, (y) is a term loan that ranks equal in right of payment with the Amendment No. 1 Refinancing Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations and (z) is denominated in dollars, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the Amendment No. 1 Refinancing Term Loans by more than 0.50% per annum, then the Effective Yield for the Amendment No. 1 Refinancing Term Loans shall be increased to the extent necessary so that the Effective Yield for the Amendment No. 1 Refinancing Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Amendment No. 1 Refinancing Term Loans shall be increased to an aggregate principal amount not to exceed the “LIBOR floor” applicable to such Incremental Cap; provided that:
Term Facility prior to any increase in the Applicable Rate applicable to such Amendment No. 1 Refinancing Term Loans then outstanding) and (ie) no may otherwise have terms and conditions as agreed between the applicable Borrower and the Additional Term Lenders providing any such Incremental Revolving Commitment may be less than $5,000,000,Term Facility.
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to such Term Loans (excluding upfront fees and customary arranger fees); provided that (i) the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment (if applicable) set forth in the proviso to Section 2.19(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Revolving Loans being increased and shall be on the same terms applicable to the Revolving Loans (excluding upfront fees and customary arranger fees); provided that if the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(iv) The Additional/Replacement Revolving Commitments (a) shall (i) rank equal or junior in right of payment with the Revolving Loans, (ii) if secured, be secured only by the Collateral securing the Secured Obligations (except in the case of any Designated Alternative Security Debt) and (iii) only be guaranteed by the Loan Parties (except in the case of any Designated Alternative Security Debt), (b) shall not mature earlier than the Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date, (c) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) commitment reduction and termination terms and other terms and conditions as separately determined by the applicable Borrower and Additional Revolving Lenders providing such commitments and (d) may otherwise have terms and conditions as agreed from time to time between the Lead applicable Borrower and Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments.
(c) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower Representative, each Lender agreeing to provide such Commitment or Loan, if any, each Additional Lender, if any, and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of Letters of Credit for the account of the Revolving Borrowers, pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit under the Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of the Borrower Representative (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments Facilities) or by any Additional Lender. Any loan under an Incremental Facility shall be within the sole and absolute discretion a “Loan” for all purposes of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of Documents. The Incremental Facility Amendment may, subject to Section 2.19(b), without the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds consent of any Incremental Revolving Facility may be used for working capitalother Lenders, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower Representative, to effect the provisions of this Section 2.19 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the establishment relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Revolving Maturity Date shall be reallocated from Lenders holding Revolving Commitments to Lenders holding extended revolving commitments in accordance with the terms of such new tranches or sub-tranches or Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the maintaining relevant Lenders holding Revolving Commitments, be deemed to be participation interests in respect of such single trancheRevolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in each case on terms consistent with the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.222.19. The Borrowers will use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement.
(gd) Notwithstanding anything to the contrary in contrary, this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.19 shall supersede any provision provisions in Section 2.18 2.17 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Sources: Credit Agreement (Viasat Inc)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new -130- #96942867v160458181 #96942867v1 term loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Revolving Facility Amendment to Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving commitments and/or increase the aggregate amount of Commitments of Total Revolving Credit Commitment or any existing Class of Commitments Additional Revolving Commitment (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount, when aggregated with the aggregate principal amount of all Incremental Equivalent Debt issued or incurred pursuant to Section 6.01(z), not to exceed the Incremental Cap, which Incremental Facilities may be denominated in U.S. Dollars or Agreed Currencies (with the interest rate calculations in respect of Agreed Currencies not already provided for in this Agreement to be defined in a manner mutually satisfactory to the Lead Borrower and the Administrative Agent); provided that:
: (i) no Incremental Revolving Commitment may be less than $5,000,000,
10,000,000, (ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
, (iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) (A) except as otherwise provided herein, the terms of each Incremental Revolving Facility (other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility or any Additional Revolving Facility, as applicable, and other than as permitted under clause (v) below), will be substantially identical to those applicable to the Revolving Facility or otherwise reasonably satisfactory to the Lead Borrower and the Administrative Agent and (other B) no Incremental Revolving Facility will mature earlier than the then-applicable Latest Revolving Loan Maturity Date or require any scheduled amortization or mandatory commitment reduction prior to such Maturity Date, (v) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Lead Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided that, except with respect to any upfront feesIncremental Term Loans (I) that are used to finance a Permitted Acquisition or other permitted Investment, original issue discount (II) that mature more than 12 months after the Initial Term Loan Maturity Date and/or (III) that are incurred on and after the 12 month anniversary of the First Amendment Effective Date, in the case of any Incremental Term Facility or similar feesIncremental Term Loans (other than a customary bridge facility) which are broadly syndicated, funded in U.S. Dollars and are pari passu with the Initial Term Loans in right of payment and with respect to security and that are incurred under clause (e) of the Incremental Cap (other than through reallocation);
(v) except as otherwise agreed by , such all-in-yield will not be more than 0.50% higher than the lenders providing corresponding all-in-yield applicable to the Initial Term Loans unless the interest rate margin with respect to the Initial Term Loans is adjusted so that the all-in-yield is equal to the all-in-yield with respect to the relevant Incremental Revolving Term Facility in connection with any acquisitionor Incremental Term Loans, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such periodminus 0.50%; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of -131- #96942867v160458181 #96942867v1 determining the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 interest rate under this clause (e).
v): (fw) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches original issue discount or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and upfront fees paid by the Lead Borrower in connection with the establishment of such new tranches Initial Term Loans or subany Incremental Term Facility (based on a four-tranches or the maintaining of such single trancheyear average life to maturity), in each case on terms consistent with this Section 2.22.
shall be included, (gx) Notwithstanding anything any amendments to the contrary Applicable Rate in this Section 2.22 respect of the Initial Term Loans that became effective subsequent to the First Amendment Effective Date but prior to the time of the addition of the relevant Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees, consent fees and any amendment fees (regardless of whether such fees are paid to or shared in whole or in part with any lender) paid or payable by the Lead Borrower to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Initial Term Loans or any Incremental Term Facility in the same currency or to one or more arrangers (or their affiliates) in their capacities as such applicable to the relevant Incremental Term Facility or Incremental Term Loans and any other provision of any Loan Document, fees not paid by the Lead Borrower to all relevant lenders generally shall be excluded and (z) if the proceeds relevant Incremental Term Facility or Incremental Term Loans in the same currency include any interest rate floor that is greater than that applicable to the existing Initial Term Loans in the same currency, and such floor is applicable to such existing Initial Term Loans on the date of effectiveness determination, the excess amount shall be equated to interest margin for determining the applicable interest rate, but only to the extent an increase in the interest rate floor in the existing Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, at the election of the Lead Borrower, the interest rate floor (but not the interest rate margin) applicable to the existing Initial Term Loans may be increased to the extent of such differential between interest rate floors to adjust the all-in-yield of the Initial Term Loans to maintain the relevant differential, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time of the incurrence thereof, (vii) the amortization requirements for such Incremental Term Loans may differ so long as the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche(s) of Term Loans (without giving effect to any prepayments thereof), (viii) (A) any Incremental Term Facility shall rank pari passu with any then-existing tranche of Revolving Loans in right of payment and shall rank pari passu with any then-existing tranche of Revolving Loans with respect to security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral (other than, in the case of any Incremental Facility incurred by an Additional Borrower as a Non-U.S. Facility, a Non-U.S. Facility which may be guaranteed by Persons that are intended to be applied to finance an acquisition not Loan Parties on the date when such Non-U.S. Facility is established and secured by any collateral in a non-U.S. jurisdiction provided that such Additional Borrower, the additional Persons that provide guarantees and collateral and the Administrative Agent on behalf of the Lenders or Additional Revolving (including the Lenders providing that provide such Incremental Revolving Facility) enter into an agreement that contains customary collateral allocation mechanism sharing provisions between such Non-U.S. Facility so agreeand the U.S. Credit Facilities), the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.-132- #96942867v160458181 #96942867v1
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, may at any time, time or from time to time on one or more occasions deliver a after the Restatement Effective Date, by written request notice delivered to the Term Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy i) one or more additional Classes of such request to each term loans (each, an “Incremental Term Facility”), (ii) one or more additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments same Class of any existing Class of Commitments term loans (each, an “Incremental Term Increase”), (iii) one or more tranches of cash-flow revolving credit facilities (the first of such tranches, the “Initial Incremental Revolving Facility” and, together with each such tranche thereafter, the “Incremental Revolving Facilities”) or (iv) one or more increases in the amount of any such increaseexisting Class of Incremental Revolving Loans (each, an “Incremental Revolving Increase”, and together with any Incremental Term Facility” , Incremental Term Increase and Incremental Revolving Facilities, the loans thereunder, “Incremental Revolving LoansFacilities”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time , after giving effect to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, Facility Amendment referred to below and at the determination to provide time that any such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility Term Loan or Incremental Revolving Loan is made or effected, (x) no Event of Default (except, in the case of the incurrence or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, (A) no for which a Specified Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility be the standard) shall have occurred and be continuing and (By) the all representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents Article III shall be true and correct in all material respects on and as of the effective date of the initial Borrowing under such Incremental Revolving Facility (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the same effect as though such representations and warranties had been made on and as terms of such date; provided that to this Agreement, for which the extent that any representation and warranty specifically refers to a given date or period, it Specified Representations shall be true and correct in all material respects as of such date or for date). Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language time. Each Incremental Facility shall be true in a minimum principal amount of $10,000,000 and correct integral multiples of $1,000,000 in excess thereof if such Incremental Facilities are denominated in dollars (after giving effect to any qualification therein) in all respects on unless the Borrower and the Term Administrative Agent otherwise agree); provided that such respective dates;
(vi) the proceeds of any Incremental Revolving Facility amount may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more less than three separate Maturity Dates in effect with respect to $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Revolving Facilities and any other Additional Revolving Facility at any timeset forth above.
(b) The Incremental Revolving Commitments may Term Loans (a) shall (i) rank equal or junior in right of payment with the Term Loans, (ii) if secured, be provided secured only by any existing Lenderthe Collateral securing the Secured Obligations and (iii) only be guaranteed by the Loan Parties, or by any other lender (other b) shall not mature earlier than any Disqualified Institutionthe Term Maturity Date, (c) who would be permitted shall not have a shorter Weighted Average Life to become Maturity than the remaining Term Loans, (d) shall have a Lender maturity date (subject to clause (b)), an amortization schedule (subject to clause (c)), interest rates (including through fixed interest rates), “most favored nation” provisions, interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants, prepayment terms and premiums and other terms and conditions as determined by the Borrower and the Additional Term Lenders thereunder; provided that, for any required consents) under Section 9.05(b) (Incremental Term Loans that rank equal in right of payment with the Term Loans and are secured on a pari passu basis with the Collateral securing the Loan Document Obligations incurred prior to the date that is twelve months after the Effective Date, in the event that the Effective Yield for any such other lender being called Incremental Term Loans is greater than the Effective Yield for the Term Loans by more than 0.50% per annum, then the Effective Yield for the Term Loans shall be increased to the extent necessary so that the Effective Yield for the Term Loans is equal to the Effective Yield for such Incremental Term Loans minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Term Loans shall be increased to an amount not to exceed the “Additional Revolving Lender”LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding); and (e) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedx) to the relevant extent the terms and documentation with respect to any Incremental Facility are not consistent with the existing Term Loans (except with respect to matters contemplated by clauses (b), (c) and (d) above) the terms, conditions and documentation of any such Incremental Facility shall be reasonably acceptable to the Term Administrative Agent. Any Incremental Term Facility or Incremental Term Increase shall be pursuant to documentation as determined by the Borrower and the Additional Revolving Lender’s provision of Term Lenders providing such Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans Term Facility or Incremental Term Increase, subject to such Additional Revolving Lenderthe restrictions and exceptions set forth above.
(c) Each Lender or Additional Revolving Lender providing a portion of any The Incremental Revolving Commitment Facilities shall execute be on terms and deliver to documentation as determined by the Administrative Agent Borrower and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate lenders providing such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of Facility; provided that any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (a) shall (i) upon its reasonable request, rank equal or junior in right of payment with the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requireTerm Loans, (ii) the Administrative Agent shall have receivedif secured, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender be secured only by the Administrative Agent (Collateral securing the “Administrative Questionnaire”) Secured Obligations and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) only be guaranteed by the Loan Parties, (b) shall not provide for scheduled amortization or mandatory commitment reductions prior to the final scheduled maturity date of the Term Loans, (c) may provide for the ability to participate with respect to borrowings and, subject to exceptions set forth in the Loan Documents, repayments on a pro rata basis or less than pro rata basis (but not greater than pro rata basis) with any other existing cash-flow revolving facility tranche, (d) may not have a final scheduled maturity date earlier than the Term Loans, (e) may provide for the ability to permanently repay and terminate the Incremental Revolving Loans on a pro rata basis, less than a pro rata basis, or greater than a pro rata basis with any existing cash-flow revolving facility tranche and (f) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that (x) to the extent the terms and documentation with respect to any Incremental Revolving Facility are not consistent with the Term Loans, the terms, conditions and documentation of any such Incremental Revolving Facility shall be reasonably acceptable to the Term Administrative Agent Agent. Any Incremental Revolving Facility or Incremental Revolving Increase shall be pursuant to documentation as determined by the Borrower and the Additional Revolving Lenders shall have received all fees required to be paid in respect of providing such Incremental Revolving Facility or Incremental Revolving Increase, subject to the restrictions and exceptions set forth above.
(d) The Incremental Revolving Increase shall be treated the same as the Class of Incremental Revolving Loans being increased (including with respect to maturity date thereof) and (iv) the Administrative Agent shall have received a certificate be considered to be part of the Class of Incremental Revolving Loans being increased (it being understood that, if required to consummate an Incremental Revolving Increase, the pricing, interest rate margins, “most favored nation” provisions, rate floors and undrawn commitment fees on the Class of Incremental Revolving Loans being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Increase (without any requirement to pay such fees to any existing Incremental Revolving Lenders)). Any Incremental Revolving Increase shall be on the same terms and pursuant to the same documentation applicable Borrower signed by a Responsible Officer thereof:to the Incremental Revolving Loans (excluding upfront fees and customary arranger fees).
(Ae) certifying and attaching a copy Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such relevant Incremental Revolving Facility Term Loans or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) Commitments in respect of any Incremental Term Increase or Incremental Revolving Increase shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Term Lender, if any, and the Term Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, be obligated to provide any Incremental Term Loans or Incremental Revolving Loans) or by any Additional Term Lender or Additional Revolving Lender. Incremental Term Loans and Incremental Revolving Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Term Administrative Agent and the Lead Borrower in connection with Borrower, to effect the establishment provisions of this Section 2.20. The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such new tranches or sub-tranches or conditions as the maintaining of such single tranche, in each case on terms consistent with parties thereto shall agree and as required by this Section 2.222.20. The Borrower will use the proceeds of the Incremental Term Loans or Incremental Revolving Loans for any purpose not prohibited by this Agreement.
(g) Notwithstanding anything to the contrary in contrary, this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.20 shall supersede any provision provisions in Section 2.18 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Sources: Restatement Agreement (Installed Building Products, Inc.)
Incremental Credit Extensions. (a) The Lead At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request to add one or more tranches of term A loans (the "Incremental Term A Loans") pursuant to an or term B loans (the "Incremental Term B Loans" and, together with the Incremental Term A Loans, the "Incremental Term Loans"), one or more increases in any Class of Term Loans or Incremental Term Loans (the "Incremental Term Loan Increases"), one or more additional revolving credit facility tranches (the "Incremental Revolving Facility Amendment to increase Facilities") or one or more increases in the aggregate amount of Commitments of any existing Class of Revolving Credit Commitments (the "Incremental Revolving Commitments"; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the "Incremental Facilities"); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default has occurred and is continuing or shall result therefrom and (ii) after giving Pro Forma Effect thereto (assuming that any such increase, an “Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility” ) and after giving effect to any Specified Transaction consummated in connection therewith, the Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the loans thereunder, “Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Revolving Loans”Facility had occurred on the first day of such Test Period).
(b) in an aggregate principal amount not The Incremental Facilities are subject to exceed the Incremental Cap; provided thatfollowing terms and conditions:
(i) no each Incremental Revolving Commitment may Facility shall have the same guarantees as, and be less than $5,000,000,secured on a pari passu basis by the same Collateral securing, the Obligations hereunder;
(ii) except as separately agreed from time no existing Lender will be required to time between the Lead Borrower and participate in any Lender, no Lender shall be obligated to provide any such Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such LenderFacility without its consent;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arrangerDefault would exist after giving effect thereto;
(iv) the maturity date of any such Incremental Term B Loans (including any Refinancing Term Loans) shall be no earlier than the Maturity Date of the Term B-2 Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B-2 Loans;
(v) in the case of Incremental Revolving Commitments, (A) the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility;
(vi) in the case of each an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility will shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially identical the same terms and pursuant to those substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with the Revolving Credit Facility;
(vii) the interest rate margins, the maturity date of any Incremental Term A Loans and (subject to clauses (iv) and (vi) above, as appropriate) amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Facilities shall be determined by the Borrower and the lenders thereunder; provided that (x) in the event that the total all in interest rate margins for any Incremental Revolving Facility (other than with respect to any upfront fees, original issue discount Refinancing Revolving Commitments) that is incurred on or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or the date that is 18 months after giving effect the Closing Date are higher than the interest rate margins for the Revolving Credit Facility by more than (in any case) 50 basis points, then the interest rate margins for the Revolving Credit Facility shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Revolving Facility minus 50 basis points and (By) in the representations and warranties of event that the Loan Parties set forth total all in this Agreement and interest rate margins for any Incremental Term B Loans (other than Refinancing Term Loans) that is incurred on or prior to the other Loan Documents date that is 18 months after the Second Incremental Amendment Closing Date are higher than the interest rate margins for the Term B-2 Loans by more than (in any case) 50 basis points, then the interest rate margin for the Term B-2 Loans shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that increased to the extent necessary so that any representation and warranty specifically refers such interest rate margin is equal to a given date or period, it shall be true and correct in all material respects as of such date or the interest rate margin for such periodIncremental Term B Loans minus 50 basis points; provided, further, that that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B-2 Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B-2 Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any representation Incremental Term A Loans, Incremental Term B Loans or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language Incremental Revolving Facility shall be true excluded, (B) original issue discount ("OID") and correct upfront fees paid to the lenders thereunder shall be included (after giving with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B-2 Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B-2 Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to any qualification therein) in all respects on the Term B-2 Loans or the Revolving Credit Facility, as applicable, shall be increased to the extent of such respective datesdifferential between interest rate floors;
(viviii) any Incremental Term A Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the proceeds Term B-2 Loans;
(ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B-2 Loans;
(x) any Incremental Term Loans or any Incremental Revolving Facility shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Term B-2 Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (iv), (vi), (vii), (viii) and (ix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B-2 Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and
(xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Facilities or Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”)Commitments; provided that such amount may be less than the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments applicable minimum amount if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderamount represents all the remaining availability hereunder as set forth above.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an "Additional Revolving Lender") and, if not already a Lender, shall become a Lender providing a portion under this Agreement pursuant to an amendment (an "Incremental Facility Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by the Intermediate Parent, the Ultimate Parent, the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Revolving Commitment Facilities shall execute and deliver become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lead Borrower Additional Lenders, be subject to the satisfaction on the date thereof (each, an "Incremental Facility Closing Date") of each of the conditions set forth in Section 4.02 (it being understood that (i) all such documentation (including references to "the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender Credit Extension" in Section 4.02 shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent be deemed to refer to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requireClosing Date, (ii) the Administrative Agent Incremental Facility Closing Date shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided be deemed to such Additional Revolving Lender by be the Administrative Agent (the “Administrative Questionnaire”initial Credit Extension for purposes of Section 4.02(a) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicablethe proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, certifying that the condition set forth conditions in clause Section 4.02 may be subject to customary "SunGard" limitations). The proceeds of any Incremental Term Loans and Incremental Term Loan Increases will be used only for general corporate purposes (a)(v) above has been satisfied.
(i) Each including Permitted Acquisitions). Upon each increase in the Aggregate Commitments pursuant to this Section, each Revolving Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Lender providing a portion of the Incremental Revolving Commitment (each a "Incremental Revolving Lender") in respect of such increase, and each relevant such Incremental Revolving Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s 's participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving Lender) participations hereunder in US Letters will equal the percentage of the aggregate Revolving Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) all Revolving Credit Lenders represented by such Revolving Credit Lender's Commitment. The Administrative Agent and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Any Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead relevant Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan),
(iv) except as otherwise permitted herein, (A) the terms of any Incremental Term Facility (other than any terms which are applicable only after the Latest Maturity Date applicable to any then-existing Term Loans) must be (1) substantially consistent with those applicable to the Initial Term A Loans in the case of Incremental Term A Loans or Initial Term B Loans in the case of Incremental Term B Loans, or (2) otherwise reasonably acceptable to the Administrative Agent (unless its rights it being understood and interests agreed that any terms that are adversely affected more favorable to the Term Lenders than those contained in any material respectthe then-existing Loan Documents and are then conformed (or added) or any other agent or arranger;
to the Loan Documents for the benefit of the Term Lenders pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii) are acceptable to the Administrative Agent) and (ivB) the terms of each any Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date), must be substantially consistent with those applicable to any then-existing Revolving Facility or otherwise reasonably acceptable to the Administrative Agent (it being understood and agreed that any terms that are more favorable to the Revolving Lenders than those contained in the then-existing Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Revolving Lenders pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii) are acceptable to the Administrative Agent),
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the relevant Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term B Facility (other than any Incremental Term B Facility consisting of a Customary Bridge Loan (excluding any Indebtedness into which such Customary Bridge Loans are converted)) that is pari passu with the Initial Term B Loans in right of payment and with respect to any upfront feessecurity, original issue discount or similar fees);the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term B Loans unless the Applicable Rate with respect to the Initial Term B Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus, 0.50%,
(vvi) (A) the final maturity date with respect to (1) any Incremental Term A Loans shall be no earlier than the Latest Maturity Date applicable to Term A Loans and/or (2) any Incremental Term B Loans shall be no earlier than the Latest Maturity Date applicable to Term B Loans and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date,
(vii) (A) the Weighted Average Life to Maturity of any Incremental Term A Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term A Loans and (B) the Weighted Average Life to Maturity of any Incremental Term B Facility (other than any Customary Bridge Loan) shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term B Loans,
(viii) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with or junior to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment or security and documented in a separate agreement, it shall be subject to an Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(ix) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with such existing Term Loans of a similar Class (i.e., Term A Loans or term B loans, as applicable), except that the relevant Borrower and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis),
(x) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of an acquisition or other Investment permitted under this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialityFacility,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixi) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other purpose use not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(Bxii) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the extent applicable, certifying that the condition contrary set forth in clause Sections 2.08 or 2.13 above, such Incremental Term Loans shall be added to (a)(v) above has been satisfied.
(i) Each Lender and constitute a part of, be of the applicable Class immediately prior to such increase will automatically and without further act be deemed to same Type as and, at the election of the Top Borrower, have assigned to the same Interest Period as) each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion Borrowing of outstanding Term Loans of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held Class on a pro rata basis (based on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders relative sizes of such Class (including the Lenders providing the relevant Incremental Revolving FacilityBorrowings), and so that each Term Lender providing such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, Term Loans will participate proportionately in each case to the extent necessary so that all then-outstanding Borrowing of the Lenders Term Loans of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22)Class; it being understood and agreed acknowledged 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 application of this clause (e).
a)(xii) may result in new Incremental Term Loans having Interest Periods (f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as duration of which may be necessary in order less than one month) that begin during an Interest Period then applicable to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving outstanding LIBO Rate Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent relevant Class and which end on the Lead Borrower in connection with the establishment last day of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22Interest Period.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Sources: First Lien Credit Agreement (Cotiviti Holdings, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (a) pursuant to an one or more additional tranches of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”) or (b) one or more increases in the aggregate amount of the Revolving Credit Commitments of any existing Class Facility or the addition of Commitments a new tranche of the Revolving Credit Facility (each such increase or new Revolving Credit Facility, a “Revolving Commitment Increase”), provided that upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist and at the time that any such increase, an “Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall exist (except in connection with a Permitted Acquisition or Investment in which case no Event of Default pursuant to Section 8.01(a) or (f) shall exist). Each tranche of Incremental Term Loans and each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than $50,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,
50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof) (provided the applicable margin applicable thereto may be increased if necessary to be consistent with that for the Revolving Commitment Increase). The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) except as set forth above, shall be treated substantially the same as the Term Loans (in each case, including with respect to mandatory and voluntary prepayments) and (e) the Applicable Rate for the Incremental Term Loans shall be determined by the Borrower and the applicable new Lenders; provided, however, that (i) until April 11, 2015, the interest rate margins for the Incremental Term Loans shall not be greater than the interest rate margins that may be payable with respect to Term Loans plus 50 basis points (and the interest rate margins applicable to any class of the Term Loans shall be increased to the extent necessary to achieve the foregoing) and (ii) solely for purposes of the foregoing clause (i), (x) the interest rate margins applicable to any Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount payable generally to Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to the Arrangers (or their respective 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 (z) if the LIBOR or Base Rate “floor” for the Incremental Term Loans is greater than the LIBOR or Base Rate “floor,” respectively, for the existing Term Loans, the difference between such floor for the Incremental Term Loans and the existing Term Loans shall be equated to an increase in the Applicable Rate, provided that (i) the Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower, provided that, to the extent such terms and documentation are not consistent with, the Term Facility (except as separately agreed to the extent permitted by clauses (b), (c) and (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, no consent shall be required from time the Administrative Agent or any Lender to time between the Lead extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and (ii) subject to clauses (b) and (c) above, the amortization schedule applicable to the Incremental Term Loans shall be determined by the Borrower and the lenders thereof. Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Lender has an obligation to make an Incremental Term Loan or provide a Revolving Commitment Increase, as applicable) 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, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, no an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by 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 Loan Party other than the Borrower, the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Amendment shall be subject to such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility Term Loans or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Increases, unless it so agrees. Upon each increase in the Revolving Loan)Credit Commitments pursuant to this Section 2.14, (a) if the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable increase relates to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving CommitmentCredit Facility, each Additional Revolving Credit Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such Class increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hb) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request to add one or more tranches of term A loans (the "Incremental Term A Loans") pursuant to an or term B loans (the "Incremental Term B Loans" and, together with the Incremental Term A Loans, the "Incremental Term Loans"), one or more increases in any Class of Term Loans or Incremental Term Loans (the "Incremental Term Loan Increases"), one or more additional revolving credit facility tranches (the "Incremental Revolving Facilities") or one or more increases in the Revolving Credit Commitments (the "Incremental Revolving Commitments"; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the "Incremental Facilities"); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment Amendment, no Default has occurred and is continuing or shall result therefrom, (ii) after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to increase any Specified Transaction consummated in connection therewith, the Nexstar Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period) and (iii) the sum of (A) the aggregate principal amount of the Revolving Credit Commitment, (B) the aggregate amount of Commitments the Nexstar Revolving Credit Commitment, (C) all Incremental Facilities consisting of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” Commitments and the loans thereunderIncremental Term A Loans, “and (D) Nexstar Incremental Facilities consisting of Nexstar Incremental Revolving Commitments and Nexstar Incremental Term A Loans”, shall not exceed $150,000,000.350,000,000.
(b) in an aggregate principal amount not The Incremental Facilities are subject to exceed the Incremental Cap; provided thatfollowing terms and conditions:
(i) no each Incremental Revolving Commitment may Facility shall have the same guarantees as, and be less than $5,000,000,secured on a pari passu basis by the same Collateral securing, the Obligations hereunder;
(ii) except as separately agreed from time no existing Lender will be required to time between the Lead Borrower and participate in any Lender, no Lender shall be obligated to provide any such Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such LenderFacility without its consent;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arrangerDefault would exist after giving effect thereto;
(iv) the terms maturity date of each any such Incremental Revolving Facility will Term B Loans (including any Refinancing Term Loans) shall be substantially identical no earlier than the Maturity Date of the Term B Loans and the Weighted Average Life to those applicable Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees)Term B Loans;
(v) except as otherwise agreed by in the lenders providing the relevant case of Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementCommitments, (A) the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no Event of Default shall exist immediately scheduled amortization or mandatory commitment reduction prior to or after giving effect the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility;
(vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility and shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with the same effect Revolving Credit Facility;
(vii) the interest rate margins, the maturity date of any Incremental Term A Loans and (subject to clauses (iv) and (vi) above, as though such representations appropriate) amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Facilities shall be determined by the Borrower and warranties had been made on and as of such datethe lenders thereunder; provided that in the event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that is incurred on or prior to the date that is 18 months after the Closing Date are higher than the interest rate margins for the Term B Loans or the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that any representation and warranty specifically refers such interest rate margins are equal to a given date or period, it shall be true and correct in all material respects as of such date or the interest rate margins for such periodIncremental Term B Loans, or Incremental Revolving Facility, as the case may be, minus 50 basis points; provided, further, that that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any representation Incremental Term A Loans, Incremental Term B Loans or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language Incremental Revolving Facility shall be true excluded, (B) original issue discount ("OID") and correct upfront fees paid to the lenders thereunder shall be included (after giving with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to any qualification therein) in all respects on the Term B Loans or the Revolving Credit Facility, as applicable, shall be increased to the extent of such respective datesdifferential between interest rate floors;
(viviii) any Incremental Term A Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the proceeds Term B Loans;
(ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans;
(x) any Incremental Term Loans or any Incremental Revolving Facility shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (iv), (vi), (vii), (viii) and (ix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to the Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and
(xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Facilities or Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”)Commitments; provided that such amount may be less than the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments applicable minimum amount if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderamount represents all the remaining availability hereunder as set forth above.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an "Additional Revolving Lender") and, if not already a Lender, shall become a Lender providing a portion under this Agreement pursuant to an amendment (an "Incremental Facility Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Revolving Commitment Facilities shall execute and deliver become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lead Borrower Additional Lenders, be subject to the satisfaction on the date thereof (each, an "Incremental Facility Closing Date") of each of the conditions set forth in Section 4.02 (it being understood that (i) all such documentation (including references to "the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender Credit Extension" in Section 4.02 shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent be deemed to refer to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requireClosing Date, (ii) the Administrative Agent Incremental Facility Closing Date shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided be deemed to such Additional Revolving Lender by be the Administrative Agent (the “Administrative Questionnaire”initial Credit Extension for purposes of Section 4.02(a) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicablethe proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, certifying that the condition set forth conditions in clause (a)(v) above has been satisfied.
(i) Each Lender Section 4.02 may be subject to customary "SunGard" limitations). The proceeds of the applicable Class immediately prior to such increase any Incremental Term Loans and Incremental Term Loan Increases will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ used only for general corporate purposes (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit Permitted Acquisitions). The Administrative Agent and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The At any time and from time to time after the Amendment and Restatement Effective Date, subject to the terms and conditions set forth herein, the Lead Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) ), pursuant to an Incremental Revolving Facility Amendment (“Incremental Amendment”) request to increase effect (i) one (1) or more additional term loan facilities hereunder or increases in the aggregate amount of Commitments of any existing Class of Commitments Term Facility (any each such increase, a “Term Commitment Increase”) from one (1) or more Additional Term Lenders or (ii) additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and the loans thereundertogether with any Term Commitment Increase, “any Incremental Term Facility and any Incremental Revolving LoansCredit Facility, a “Commitment Increase”) in an aggregate principal amount not to exceed the Incremental Capfrom Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment:
(A) except as otherwise agreed by the Additional Lenders providing an Incremental Facility to finance an Acquisition or other investment permitted under this Agreement, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect thereto;
(B) solely during a Secured Covenants Period, on the date of the incurrence or effectiveness of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), the Lead Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenant set forth in Section 6.24(a) recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided that, to the extent incurred in connection with an Acquisition, at the Lead Borrower’s election, the Lead Borrower’s compliance on a Pro Forma Basis with the financial covenant set forth in Section 6.24(a) may be determined at the time of the signing of any acquisition agreement with respect thereto or at the time of the closing of such acquisition; provided, further that if the Lead Borrower has made the election to measure such compliance on the date of the signing of an acquisition agreement, in connection with the calculation of any ratio with respect to the incurrence of Indebtedness or Liens, or the making of investments, Distributions, Restricted Debt Payments, asset sales, fundamental changes or the designation of an Unrestricted Subsidiary on or following such date and until the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated or expired (but not for the purposes of calculating any financial covenant), such ratio shall be calculated on a Pro Forma Basis assuming such Acquisition and any other Specified Transactions in connection therewith (including the incurrence of Indebtedness) have been consummated;
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A-2 Termination Date then in effect;
(D) each Incremental Term B Facility and each other Incremental Term Facility (other than an Incremental Term A Facility) shall have a final maturity date no earlier than 91 days after the Term A-2 Termination Date then in effect;
(E) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A-2 Loans then outstanding;
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of the Term A-2 Loans then outstanding;
(G) any Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the commitments related thereto prior to, the Revolving Credit Termination Date then in effect and all other terms of any such Incremental Revolving Credit Facility (except with respect to margin, pricing and fees and as set forth in the foregoing clauses and clause (I) below and other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility) shall be substantially identical to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent;
(H) all Incremental Facilities shall rank pari passu or junior in right of payment and right of security in respect of the Collateral (if any) with the Term A-2 Loans and the Revolving Loans or may be unsecured; provided that to the extent any such Incremental Facilities are subordinated in right of payment or right of security, or pari passu in right of security and subject to separate documentation, they shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent;
(I) no Incremental Facility shall be guaranteed by any Person which is not a Loan Party;
(J) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment with any then-existing Term Loans shall be made on a pro rata basis with such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Lead Borrower and the Additional Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis); provided that any Incremental Term B Loans may have an “excess cash flow”, asset sale (during an Unsecured Covenants Period) or Indebtedness mandatory prepayment without requiring that such mandatory prepayments apply to the Term A-2 Loans;
(K) the Lead Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with subclause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Lead Borrower for which the Lead Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.1(e), be accompanied by a reasonably detailed calculation of Consolidated Adjusted EBITDA for the relevant period);
(L) all fees or other payments owing pursuant to Section 10.13 or as otherwise agreed in writing in respect of such Commitment Increase to the Administrative Agent and the Additional Lenders shall have been paid; and
(M) the other terms and conditions (excluding those referenced in clauses (A) through (K)) of such Incremental Facility shall be substantially identical to, or (taken as a whole) not materially more favorable (as reasonably determined by the Lead Borrower) to the lenders providing such Incremental Facility than those applicable to the Term Loans (except for covenants or other provisions applicable only to periods after the latest final maturity date other than existing Term Loans or Commitments); provided that
(i) no to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses above and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent and (ii) any Incremental Term B Loans will not have the benefit of the financial covenants set forth in Section 6.24.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases incurred after the Amendment and Restatement Effective Date shall not exceed (i) (A) during a Secured Covenants Period, $1,500.0 million (less (I) the aggregate principal amount of Incremental Equivalent Debt incurred pursuant to Section 6.15(I)(u) in reliance on this clause (i) of the Incremental Cap and (II) the aggregate principal amount of any 2024 Convertible Notes Early Refinancing Indebtedness to the extent that the 2024 Convertible Notes are then outstanding) or (B) during an Unsecured Covenants Period, $2,000.0 million (the applicable amount under this clause (i), the “Fixed Dollar Incremental Amount”), plus (ii) during any Secured Covenants Period, an unlimited amount so long as in the case of this clause (ii), the Senior Secured Leverage Ratio does not exceed 2.50:1.00, determined on a Pro Forma Basis after giving effect to such Commitment Increase assuming (x) that all such Indebtedness is secured even if not so secured and (y) in the case of an Incremental Revolving Credit Facility, such Incremental Revolving Credit Facility has been drawn in full and any related transaction as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b) (such amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that, to the extent incurred in connection with an Acquisition, at the Lead Borrower’s election, the Lead Borrower’s compliance on a Pro Forma Basis with the Senior Secured Leverage Ratio under this clause (ii) may be determined at the time of the signing of any acquisition agreement with respect thereto or at the time of the closing of such acquisition; provided, further that if the Lead Borrower has made the election to measure such compliance on the date of the signing of an acquisition agreement, in connection with the calculation of any ratio with respect to the incurrence of Indebtedness or Liens, or the making of investments, Distributions, Restricted Debt Payments, asset sales, fundamental changes or the designation of an Unrestricted Subsidiary on or following such date and until the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated or expires (but not for the purposes of calculating any financial covenant), such ratio shall be calculated on a Pro Forma Basis assuming such Acquisition and any other Specified Transactions in connection therewith (including the incurrence of Indebtedness) have been consummated; provided, further that (x) any Incremental Facility may be incurred under either clause (i) or clause (ii) as selected by the Lead Borrower in its sole discretion, including by designating any portion of any Incremental Facility in excess of an amount permitted to be incurred under clause (ii) at the time of such incurrence as incurred under clause (i), and unless the Lead Borrower otherwise elects, any portion of any Commitment Increase that could be established in reliance on this clause (ii) at the time of incurrence shall be deemed to have been incurred in reliance on the Ratio-Based Incremental Amount without reducing the Fixed Dollar Incremental Amount (the total aggregate amount described under clauses (i) and (ii) hereof, the “Incremental Cap”), (y) the Lead Borrower may redesignate any Incremental Facility originally designated as incurred under clause (i) as having been incurred under clause (ii), so long as at the time of such redesignation, the Lead Borrower would be permitted to incur such Incremental Facility under clause (ii) and (z) upon and following any Secured Covenant Reinstatement Event, the full amount of the Fixed Dollar Incremental Amount may be incurred without reduction for the aggregate principal amount of any Incremental Facilities incurred under the Fixed Dollar Incremental Amount prior to such Secured Covenant Reinstatement Event. Each Commitment Increase shall be in a minimum principal amount of $50.0 million and integral multiples of $1.0 million in excess thereof; provided that such amount may be less than $5,000,000,
(ii) except as separately agreed from time to time between 50.0 million if such amount represents all the Lead Borrower and any Lender, no remaining availability under the aggregate principal amount of Commitment Increases set forth above. No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (Increase unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderso agrees.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and notice from the Lead Borrower all such documentation (including pursuant to this Section 2.14 shall set forth the requested amount of the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this AgreementCommitment Increase.
(d) As a condition precedent to Upon the effectiveness implementation of any Incremental Revolving Credit Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided Credit Commitment Increase pursuant to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereofthis Section 2.14:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each with respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Additional Revolving Lender, and each relevant Incremental Additional Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Participating Interests such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Additional Revolving Lender’s) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Participating Interests shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22Increase) and (iiB) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase), and such other Revolving Lenders (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans of such Class pro rata on the basis of their respective Commitments of such Class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22Increase); it being understood and agreed 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 the immediately preceding sentence; and
(ii) with respect to any Incremental Revolving Credit Facility, (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the existing Revolving Facilities and such Incremental Revolving Credit Facility, (y) repayments required upon the maturity date of the then-existing Revolving Facility and such Incremental Revolving Credit Facility and (z) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (eC) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, (B) all letters of credit made or issued, as applicable, under such Incremental Revolving Credit Facility shall be participated in on a pro rata basis by all Revolving Lenders under such Incremental Revolving Credit Facility and (C) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then-outstanding Incremental Revolving Credit Facility, except that the Lead Borrower shall be permitted to permanently repay and terminate commitments under any revolving facility on a greater than pro rata basis as compared with any other revolving facility with a later maturity date than such revolving facility.
(fe) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds Effective on the date of effectiveness of any each Incremental Revolving Credit Facility are intended to be applied to finance the maximum amount of Letter of Credit Usage permitted hereunder shall increase by an acquisition amount, if any, agreed upon by the Administrative Agent, the L/C Issuers and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Lead Borrower; provided that the
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, Borrowers may at any time, time or from time to time on one or more occasions deliver a written after the Effective Date request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy i) one or more additional Classes of such request to each term loans (each, an “Incremental Term Facility”), (ii) one or more additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments same Class of any existing Class of term loans (each, an “Incremental Term Increase”), (iii) one or more increases in the amount of the Revolving Commitments of any Class (any each such increase, an “Incremental Revolving Commitment Increase”) and/or (iv) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility” , Incremental Term Increase and the loans thereunderIncremental Revolving Commitment Increases, the “Incremental Facilities”); provided that (x) after giving effect to any Incremental Facility Amendment referred to below and at the time that any such Incremental Facility is made or effected, no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, no Specified Event of Default) shall have occurred and be continuing and (y) in no event shall it be a condition to the effectiveness of, or borrowing under, any Incremental Facility that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the Additional Lenders providing such Incremental Facility. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrowers and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(i) The Incremental Term Facilities (a) shall (i) rank equal or junior in right of payment with the Amendment No. 1 Refinancing Term Loans, (ii) if secured, be secured only by the Collateral securing the Secured Obligations (except in the case of any Designated Alternative Security Debt) and (iii) only be guaranteed by the Loan Parties (except in the case of any Designated Alternative Security Debt), (b) except in the case of any Designated Earlier Maturing Debt, shall not mature earlier than the Term Maturity Date, (c) except in the case of any Designated Earlier Maturing Debt, shall not have a shorter Weighted Average Life to Maturity than the remaining InitialAmendment No. 1 Refinancing Term Loans, (d) shall have a maturity date (subject to clause (b)), an amortization schedule (subject to clause (c)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by the applicable Borrower and the Additional Term Lenders thereunder; provided that, for any Incremental Revolving Loans”Term Facility that (x) is broadly syndicated to banks and other institutional investors, (y) is a term loan that ranks equal in right of payment with the InitialAmendment No. 1 Refinancing Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations and (z) is denominated in dollars, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the InitialAmendment No. 1 Refinancing Term Loans by more than 0.50% per annum, then the Effective Yield for the InitialAmendment No. 1 Refinancing Term Loans shall be increased to the extent necessary so that the Effective Yield for the InitialAmendment No. 1 Refinancing Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding InitialAmendment No. 1 Refinancing Term Loans shall be increased to an aggregate principal amount not to exceed the “LIBOR floor” applicable to such Incremental Cap; provided that:
Term Facility prior to any increase in the Applicable Rate applicable to such InitialAmendment No. 1 Refinancing Term Loans then outstanding) and (ie) no may otherwise have terms and conditions as agreed between the applicable Borrower and the Additional Term Lenders providing any such Incremental Revolving Commitment may be less than $5,000,000,Term Facility.
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Initialsuch Term Loans (excluding upfront fees and customary arranger fees); provided that (i) the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment (if applicable) set forth in the proviso to Section 2.19(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Revolving Loans being increased and shall be on the same terms applicable to the Revolving Loans (excluding upfront fees and customary arranger fees); provided that if the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(iv) The Additional/Replacement Revolving Commitments (a) shall (i) rank equal or junior in right of payment with the Revolving Loans, (ii) if secured, be secured only by the Collateral securing the Secured Obligations (except in the case of any Designated Alternative Security Debt) and (iii) only be guaranteed by the Loan Parties (except in the case of any Designated Alternative Security Debt), (b) shall not mature earlier than the Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date, (c) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) commitment reduction and termination terms and other terms and conditions as separately determined by the applicable Borrower and Additional Revolving Lenders providing such commitments and (d) may otherwise have terms and conditions as agreed from time to time between the Lead applicable Borrower and Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments.
(c) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower Representative, each Lender agreeing to provide such Commitment or Loan, if any, each Additional Lender, if any, and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of Letters of Credit for the account of the Revolving Borrowers, pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit under the Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of the Borrower Representative (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments Facilities) or by any Additional Lender. Any loan under an Incremental Facility shall be within the sole and absolute discretion a “Loan” for all purposes of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of Documents. The Incremental Facility Amendment may, subject to Section 2.19(b), without the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds consent of any Incremental Revolving Facility may be used for working capitalother Lenders, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower Representative, to effect the provisions of this Section 2.19 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the establishment relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Revolving Maturity Date shall be reallocated from Lenders holding Revolving Commitments to Lenders holding extended revolving commitments in accordance with the terms of such new tranches or sub-tranches or Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the maintaining relevant Lenders holding Revolving Commitments, be deemed to be participation interests in respect of such single trancheRevolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in each case on terms consistent with the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.222.19. The Borrowers will use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement.
(gd) Notwithstanding anything to the contrary in contrary, this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.19 shall supersede any provision provisions in Section 2.18 2.17 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Sources: Credit Agreement (Viasat Inc)
Incremental Credit Extensions. (a) The Lead At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request to add one or more tranches of term A loans (the "Incremental Term A Loans") pursuant to an or term B loans (the "Incremental Term B Loans" and, together with the Incremental Term A Loans, the "Incremental Term Loans"), one or more increases in any Class of Term Loans or Incremental Term Loans (the "Incremental Term Loan Increases"), one or more additional revolving credit facility tranches (the "Incremental Revolving Facility Amendment to increase Facilities") or one or more increases in the aggregate amount of Commitments of any existing Class of Revolving Credit Commitments (the "Incremental Revolving Commitments"; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the "Incremental Facilities"); provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default has occurred and is continuing or shall result therefrom and (ii) after giving Pro Forma Effect thereto (assuming that any such increase, an “Incremental Revolving Facilities or Incremental Revolving Commitments are drawn in full and excluding the cash proceeds of such Incremental Facility” ) and after giving effect to any Specified Transaction consummated in connection therewith, the Nexstar Borrower is in compliance (on a Pro Forma Basis) with the Consolidated First Lien Net Leverage Ratio and the loans thereunder, “Consolidated Total Net Leverage Ratio Financial Covenants as of the end of the most recent Test Period (as if the incurrence of such Incremental Revolving Loans”Facility had occurred on the first day of such Test Period).
(b) in an aggregate principal amount not The Incremental Facilities are subject to exceed the Incremental Cap; provided thatfollowing terms and conditions:
(i) no each Incremental Revolving Commitment may Facility shall have the same guarantees as, and be less than $5,000,000,secured on a pari passu basis by the same Collateral securing, the Obligations hereunder;
(ii) except as separately agreed from time no existing Lender will be required to time between the Lead Borrower and participate in any Lender, no Lender shall be obligated to provide any such Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such LenderFacility without its consent;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arrangerDefault would exist after giving effect thereto;
(iv) the maturity date of any such Incremental Term B Loans (including any Refinancing Term Loans) shall be no earlier than the Maturity Date of the Term B-2 Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B-2 Loans;
(v) in the case of Incremental Revolving Commitments, (A) the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility;
(vi) in the case of each an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility will shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially identical the same terms and pursuant to those substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with the Revolving Credit Facility;
(vii) the interest rate margins, the maturity date of any Incremental Term A Loans and (subject to clauses (iv) and (vi) above, as appropriate) amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Facilities shall be determined by the Borrower and the lenders thereunder; provided that (x) in the event that the total all in interest rate margins for any Incremental Revolving Facility (other than with respect to any upfront fees, original issue discount Refinancing Revolving Commitments) that is incurred on or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or the date that is 18 months after giving effect the Closing Date are higher than the interest rate margins for the Revolving Credit Facility by more than (in any case) 50 basis points, then the interest rate margins for the Revolving Credit Facility shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Revolving Facility minus 50 basis points and (By) in the representations and warranties of event that the Loan Parties set forth total all in this Agreement and interest rate margins for any Incremental Term B Loans (other than Refinancing Term Loans) that is incurred on or prior to the other Loan Documents date that is 18 months after the Second Incremental Amendment Closing Date are higher than the interest rate margins for the Term B-2 Loans by more than (in any case) 50 basis points, then the interest rate margin for the Term B-2 Loans shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that increased to the extent necessary so that any representation and warranty specifically refers such interest rate margin is equal to a given date or period, it shall be true and correct in all material respects as of such date or the interest rate margin for such periodIncremental Term B Loans minus 50 basis points; provided, further, that that, in determining the interest rate margins applicable to the Incremental Term B Loans and the Term B-2 Loans or the Incremental Revolving Facility and the Revolving Credit Facility, (A) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term B-2 Loans, or the Revolving Credit Facility or to one or more arrangers (or their affiliates) of any representation Incremental Term A Loans, Incremental Term B Loans or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language Incremental Revolving Facility shall be true excluded, (B) original issue discount ("OID") and correct upfront fees paid to the lenders thereunder shall be included (after giving with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans or the Incremental Revolving Facilities include an interest rate floor greater than the applicable interest rate floor under the Term B-2 Loans, or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B-2 Loans, or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to any qualification therein) in all respects on the Term B-2 Loans, or the Revolving Credit Facility, as applicable, shall be increased to the extent of such respective datesdifferential between interest rate floors;
(viviii) any Incremental Term A Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the proceeds Term B-2 Loans;
(ix) any Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B-2 Loans;
(x) any Incremental Term Loans or any Incremental Revolving Facility shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Term B-2 Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (iv), (vi), (vii), (viii) and (ix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (x), (A) the terms and conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term B-2 Loans); provided, however, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and
(xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any Incremental Term Loans or Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Facilities or Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”)Commitments; provided that such amount may be less than the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments applicable minimum amount if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lenderamount represents all the remaining availability hereunder as set forth above.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an "Additional Revolving Lender") and, if not already a Lender, shall become a Lender providing a portion under this Agreement pursuant to an amendment (an "Incremental Facility Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental Revolving Commitment Facilities shall execute and deliver become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Lead Borrower Additional Lenders, be subject to the satisfaction on the date thereof (each, an "Incremental Facility Closing Date") of each of the conditions set forth in Section 4.02 (it being understood that (i) all such documentation (including references to "the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender Credit Extension" in Section 4.02 shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent be deemed to refer to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requireClosing Date, (ii) the Administrative Agent Incremental Facility Closing Date shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided be deemed to such Additional Revolving Lender by be the Administrative Agent (the “Administrative Questionnaire”initial Credit Extension for purposes of Section 4.02(a) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicablethe proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility agree, certifying that the condition set forth conditions in clause (a)(v) above has been satisfied.
(i) Each Lender Section 4.02 may be subject to customary "SunGard" limitations). The proceeds of the applicable Class immediately prior to such increase any Incremental Term Loans and Incremental Term Loan Increases will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ used only for general corporate purposes (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit Permitted Acquisitions). The Administrative Agent and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead At any time and from time to time after the Escrow Release Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) ), pursuant to an Incremental Revolving Facility Amendment (“Incremental Amendment”) request to increase effect (i) one (1) or more additional term loan facilities hereunder or increases in the aggregate amount of Commitments of any existing Class of Commitments Term Facility (any each such increase, a “Term Commitment Increase”) from one (1) or more Additional Term Lenders or (ii) additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and the loans thereundertogether with any Term Commitment Increase, “any Incremental Term Facility and any Incremental Revolving LoansCredit Facility, a “Commitment Increase”) in an aggregate principal amount not to exceed the Incremental Capfrom Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(vA) except as otherwise agreed by the lenders Additional Lenders providing the relevant an Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of to finance an Acquisition or other investment permitted under this Agreement, (A) no Default or Event of Default shall have occurred and be continuing or would exist immediately prior to or after giving effect to such Incremental Revolving Facility and thereto,
(B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under incurrence or effectiveness of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), the Borrower shall be in compliance, on a Pro Forma Basis, with the same financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided that, to the extent incurred in connection with an Acquisition, at the Borrower’s election, the Borrower’s compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.22 may be determined at the time of the signing of any acquisition agreement with respect thereto or at the time of the closing of such acquisition; provided, further that if the Borrower has made the election to measure such compliance on the date of the signing of an acquisition agreement, in connection with the calculation of any ratio with respect to the incurrence of Indebtedness or Liens, or the making of investments, Distributions, Restricted Debt Payments, asset sales, fundamental changes or the designation of an Unrestricted Subsidiary on or following such date and until the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated or expired (but not for the purposes of calculating any financial covenant), such ratio shall be calculated on a Pro Forma Basis assuming such Acquisition and any other Specified Transactions in connection therewith (including the incurrence of Indebtedness) have been consummated,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A-1 Termination Date then in effect,
(D) each Incremental Term B Facility and each other Incremental Term Facility (other than an Incremental Term A Facility) shall have a final maturity date no earlier than the U.S. Term B-3 Termination Date then in effect,
(E) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A-1 Loans then outstanding,
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of the Term B Loans then outstanding,
(G) any Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the commitments related thereto prior to, the Revolving Credit Termination Date then in effect as though and all other terms of any such representations Incremental Revolving Credit Facility (except with respect to margin, pricing and warranties had been made on fees and as set forth in the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility) shall be substantially identical to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent,
(H) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to security with any then existing U.S. Term B-3 Loans (the “Relevant Existing Facility”), such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the Relevant Existing Facility unless the interest rate with respect to the Relevant Existing Facility is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity), shall be included, (x) any amendments to or changes in the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Amendment No. 7 Effective Date but prior to the time of (or concurrently with) the addition of such dateIncremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Joint Lead Arrangers (or their affiliates) in their respective capacities as such in connection with the Relevant Existing Facility or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) all Incremental Facilities shall rank pari passu or junior in right of payment and right of security in respect of the Collateral (if any) with the Term Loans and the Revolving Loans or may be unsecured; provided that to the extent that any representation such Incremental Facilities are subordinated in right of payment or right of security, or pari passu in right of security and warranty specifically refers subject to a given date or periodseparate documentation, it they shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as subject to “materialityintercreditor arrangements reasonably satisfactory to the Administrative Agent,” “Material Adverse Effect” or similar language
(J) no Incremental Facility shall be true and correct (after giving effect to guaranteed by any qualification therein) in all respects on such respective dates;Person which is not a Loan Party,
(viK) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment with any Disqualified Institutionthen-existing Term Loans shall be made on a pro rata basis with such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the Additional Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(L) who would be permitted the Borrower shall have delivered to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with subclause (B) above (which calculations shall, if made as of the last day of any Issuing Bank shall have consented (such consent fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be unreasonably withheld or delayed) to delivered by Section 6.1(e), be accompanied by a reasonably detailed calculation of Consolidated Adjusted EBITDA and Interest Expense for the relevant Additional Revolving Lender’s provision period), (M) all fees or other payments owing pursuant to Section 10.13 or as otherwise agreed in writing in respect of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver Increase to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loansbeen paid, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of Incremental Revolving Credit Commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent (it being agreed that (x) any terms which are applicable only after the then-existing Latest Term Loan Maturity Date and (y) terms contained in such Incremental Term Facility that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or, as applicable, the Administrative Agent (unless its rights and interests are adversely affected in any material respect) i.e., by conforming or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable adding a term to the Revolving then-outstanding Term Loans pursuant to the applicable Incremental Facility (other than with respect Amendment) shall be deemed satisfactory to any upfront fees, original issue discount or similar fees);
(vthe Administrative Agent) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations terms of any Incremental Revolving Facility, if not substantially consistent with those applicable to any then-existing Revolving Facility must be reasonably acceptable to the Administrative Agent (it being agreed that (x) any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date and warranties of the Loan Parties set forth (y) terms contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility that are more favorable to the lenders or the agent of such Incremental Revolving Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Revolving Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Revolving Facility pursuant to the applicable Incremental Facility Amendment) shall be deemed satisfactory to the Administrative Agent),
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Facility that is (A) in an aggregate principal amount in excess of $235,000,000 (the “MFN Trigger Amount”), (B) pari passu with the same effect as though Initial Term Loans in right of payment and with respect to security, (C) incurred in reliance on clause (e) of the definition of “Incremental Cap” (but not any reclassification pursuant to clause (iii) of the proviso to such representations and warranties had been made on and as of such date; provided that definition), (D) incurred prior to the extent 12-month anniversary of the Closing Date and (E) scheduled to mature prior to the date that any representation is two years after the Initial Term Loan Maturity Date, the Effective Yield applicable thereto may not be more than 0.75% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.75% (this clause (v), including the carveouts and warranty specifically refers to a given date or periodqualifications set forth in clauses (A) through (E), it shall be true and correct in all material respects as of such date or for such periodthe “MFN Protection”); provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect increase in Effective Yield to any qualification thereinInitial Term Loan due to the application or imposition of an Alternate Base Rate floor or Term SOFR floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) in all respects on any Alternate Base Rate floor or Term SOFR floor applicable to such respective dates;
Initial Term Loan, (vi) (A) subject to the proceeds of Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and (B) no Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
have a final maturity date earlier than (vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld require scheduled amortization or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (iimandatory commitment reductions prior to) the Administrative Agent shall have received, from each Additional Latest Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Maturity Date,
Appears in 1 contract
Sources: Credit Agreement (CCC Intelligent Solutions Holdings Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, Borrowers may at any timetime or from time to time after the Effective Date, on one or more occasions deliver a by written request notice delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy i) one or more additional Classes of such request to each term loans or additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (any each such increase, an “Incremental Revolving FacilityCommitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the loans thereunderIncremental Revolving Commitment Increases, the “Incremental Revolving LoansFacilities”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected (i) no Incremental Revolving Commitment may the First Lien Leverage Ratio shall be less than $5,000,000,
or equal to 1.50 to 1.00, calculated on a Pro Forma Basis (iiwhich shall assume that all such Incremental Facilities are secured by the Collateral on an equal priority basis (but without regard to the control of remedies) except as separately agreed from time to time between with the Lead Borrower Liens securing the Secured Obligations whether or not so secured and any Lendershall assume, no Lender shall be obligated to provide any Incremental Revolving Commitment, and in the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part case of any Incremental Revolving Commitment Increase, that such commitments were fully drawn) and (ii) no Event of Default (except, in the case of the incurrence or provision of any Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, (A) no Significant Event of Default Default) shall exist immediately prior have occurred and be continuing unless, in connection with a Permitted Acquisition or another Investment not prohibited by the terms of this Agreement, customary “Sungard” or “certain funds” conditionality is otherwise agreed to or after by the Lenders providing such Incremental Facilities. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof if such Incremental Facilities are denominated in dollars (unless the Borrowers and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(b) The Incremental Term Loans (i) shall rank equal in right of payment with the Term Loans, shall be secured only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (ii) shall not mature earlier than the Term Maturity Date, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Term Loans (without giving effect to any prepayments), (iv) shall have a maturity date (subject to clause (ii)), an amortization schedule (subject to clause (iii)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrowers and the lenders of the Incremental Term Loans; provided that in the event that the Effective Yield for any Incremental Term Loans (excluding any Incremental Term Loans in an aggregate amount not to exceed $5,000,000) incurred after the Effective Date is greater than the Effective Yield for the Term Loans by more than 0.50% per annum, then the Effective Yield for the Term Loans shall be increased to the extent necessary so that the Effective Yield for the Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Revolving Facility Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding); and (Bv) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (ii), (iii) and (iv) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the representations documentation governing any Incremental Term Loans may include a financial maintenance covenant and warranties any related equity cure, it being understood that, to the extent that any financial maintenance covenant and any related equity cure are added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date.
(c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Loans being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the Borrowers and the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrowers and the lenders of such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrowers, the lenders of such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)).
(e) Each notice from the Borrowers pursuant to this Section shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments.
(f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments pursuant to this Agreement shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Borrowers and the Issuing Banks (to the extent such consent would be required for an assignment pursuant to Section 9.04) (in each case, such consent not to be unreasonably withheld), by any existing Lender (it being understood that (i) the Borrowers shall first seek Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments from the Term Lenders party hereto on the Effective Date (solely to the extent such Term Lenders remain Term Lenders at any such time) by providing prior notice of its intention to seek such Commitments pursuant to this Section (each of which existing Lender shall be entitled to agree or decline to participate in its sole discretion) and, if such existing Lenders do not agree to provide such Incremental Term Loans, Incremental Revolving Commitment Increases and/or Additional/Replacement Revolving Commitments within 10 Business Days after such notice, the Borrowers may seek Commitments from additional banks, financial institutions and other institutional lenders or investors who will become Lenders in connection with such Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments and (ii) no existing Lender shall have the right to participate in any Incremental Loans or, unless it agrees, be obligated to provide any Incremental Loans) or by any Additional Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments pursuant to this Agreement shall be a “Loan” for all purposes of this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of Documents. The Incremental Facility Amendment may, subject to Section 2.14(c), without the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds consent of any Incremental Revolving Facility may be used for working capitalother Lenders, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrowers, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the establishment relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such new tranches or sub-tranches or conditions as the maintaining parties thereto shall agree. The Borrowers will use the proceeds of such single tranchethe Incremental Term Loans, in each case on terms consistent with Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Section 2.22Agreement.
(g) Notwithstanding anything to the contrary in contrary, this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.20 shall supersede any provision provisions in Section 2.18 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, subject to clause (b) below, at any time, on one or more occasions occasions, deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of (other than any existing Class of Commitments Initial Peak Season Commitment or the FILO Revolving Sublimit) then in effect (any such increase, an “Incremental Revolving Facility” ”; the commitment thereunder, an “Incremental Revolving Commitment”; and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed (x) with respect to the FILO Incremental FILO Revolving Facility under clause (b) 133208524_1 below, the Incremental FILO Cap, (y) with respect to the Additional European Incremental Revolving Facility, the Incremental European Cap and (z) with respect to each other Incremental Revolving Facility, the Incremental Cap; provided that:
, with respect to any Incremental Revolving Facility (i) including, for the avoidance of doubt, the FILO Incremental FILO Revolving Facility and the Additional European Incremental Revolving Facility), except as expressly set forth below: no Incremental Revolving Commitment may (A) be less than $5,000,000,
5,000,000 (iiunless otherwise agreed by the Administrative Agent in its Permitted Discretion) or (B) increase any Initial Peak Season Commitment or the FILO Revolving Sublimit, except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) ; no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless except (i) if its rights and interests are adversely affected in any material respectrespect or (ii) if otherwise expressly set forth in this Section 2.22) or any other agent or arranger;
; provided that, unless otherwise consented to by the Administrative Agent, the terms of the FILO Incremental FILO Revolving Facility or the Additional European Incremental Revolving Facility shall be administratively feasible to the Administrative Agent (ivas determined by the Administrative Agent in good faith); other than in the case of the FILO Incremental FILO Revolving Facility (the terms of which shall be governed by clause (b) below) or the Additional European Incremental Revolving Facility (the terms of which shall be governed by clause (c) below), the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) ; except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) ; and the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any transactions or other purpose not prohibited by this Agreement; and
Agreement (vii) at no time shall there be more than three separate Maturity Dates subject to any limitations set forth in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute Facility Amendment). The Lead Borrower may, at any time from and after the FILO Revolving Sublimit Termination Date, on one occasion deliver a written request to the Administrative Agent and (whereupon the Lead Borrower all Administrative Agent may promptly deliver a copy of such documentation (including request to each of the relevant Lenders) pursuant to an Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such establish Incremental Revolving Commitment. On Commitments in the effective date form of such Incremental Revolving Commitmenta separate “first-in, each Additional Revolving Lender shall become a Lender for all purposes last-out” Class in connection with this Agreement.
(d) As a condition precedent relation to the effectiveness of any Incremental Initial Revolving Facility or the making of (any such Class, a “FILO Incremental FILO Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative QuestionnaireFacility”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lenderin an aggregate principal amount not to exceed the Incremental FILO Cap, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility with interest rate margins, rate floors, upfront fees, original issue discount or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans133208524_1 similar fees, in each case to be agreed upon (which, for the extent necessary so that all avoidance of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowingdoubt, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply require any adjustment to the transactions effected pursuant to this clause (e).
(fApplicable Rate of other Revolving Loans) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and between the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional providing the FILO Incremental FILO Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Facility; provided that:
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) ), pursuant to an Incremental Revolving Facility Amendment (“Incremental Amendment”) request to increase effect (i) one or more additional tranches of term loans hereunder or increases in the aggregate amount of Commitments of any existing Class of Commitments the Term B Loans (any each such increase, an a “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansTerm Commitment Increase”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
from one or more Additional Term Lenders or (ii) except as separately agreed increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and together with the Term Commitment Increase, a “Commitment Increase”) from Additional Revolving Lenders; provided that at the time to time between of each such request and upon the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms effectiveness of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementAmendment, (A) no Default or Event of Default shall exist immediately prior to have occurred and be continuing or after giving effect to such Incremental Revolving Facility and shall result therefrom, (B) the maturity date of any term loans or revolving loans incurred pursuant to such Term Commitment Increase or Revolving Credit Commitment Increase, as applicable, shall not be earlier than the Term B Termination Date or Revolving Credit Termination Date, as applicable, (C) the Weighted Average Life to Maturity of any term loans pursuant to such Term Commitment Increase shall not be less than the remaining Weighted Average Life to Maturity of the Term B Loans; (D) the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower (and assuming full utilization of the Revolving Credit Commitment), (E) the Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A), (C) and (D) above, together with reasonably detailed calculations demonstrating compliance with subclause (C) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.1(e), be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Interest Expense for the relevant period), (F) the applicable yield relating to any term loans or revolving loans incurred pursuant to such Term Commitment Increase or Revolving Credit Commitment Increase (each facility thereunder, the “Incremental Facility”), as applicable, shall not be greater than that with respect to the existing Term B Facility or existing Revolving Facility, as applicable, plus 0.50% per annum unless the yield applicable to the existing Term B Facility or existing Revolving Facility, as applicable, is increased so that the yield applicable to the applicable Incremental Facility does not exceed the yield applicable to the existing Term B Facility or existing Revolving Facility, as applicable, by more than 0.50% per annum; provided that in determining the yield applicable to the existing Term B Facility or existing Revolving Facility, as applicable, and the applicable Incremental Facility, (x) original issue discount (“OID”) or upfront fees or other payments or any duration, ticking or similar fee (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Term B Lenders or Revolving Lenders, as applicable, or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the applicable Incremental Facility), (y) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or its affiliates in connection with the existing Term B Facility or existing Revolving Facility, as applicable, or to one or more arrangers (or their affiliates) of the applicable Incremental Facility shall be excluded and (z) if the eurodollar rate in respect of such Incremental Facility includes a floor greater than any floor applicable to the analogous existing Facility under the definition of “Adjusted LIBOR,” such increased amount shall be equated to interest margin for purposes of determining any increase to the applicable yield under the analogous Facility, (G) the revolving loans incurred pursuant to such Revolving Credit Commitment Increase will mature no earlier than, and will require no scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Termination Date and all other terms of any such Incremental Facility (except as set forth in the foregoing clauses) shall be substantially identical to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent, (H) to the extent the terms of any term loans incurred pursuant to a Term Commitment Increase are different from the terms applicable to the Term B Facility (except to the extent permitted by the foregoing clauses), such terms shall be reasonably satisfactory to the Administrative Agent, (I) all fees or other payments owing pursuant to Section 10.13 in respect of such increase to the Administrative Agent and the Lenders shall have been paid, and (J) each of the representations and warranties of the Loan Parties set forth herein and in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of (or all respects to the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and extent otherwise qualified by a materiality threshold) as of such date, except to the extent the same expressly relate to an earlier date. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of all Commitment Increases and (ii) the aggregate principal amount of all Commitment Increases (as defined under the Second Lien Loan Agreement) under the Second Lien Loan Agreement shall not exceed $350,000,000 (plus, in the case of a Revolving Credit Commitment Increase that serves to effectively extend the maturity of the Revolving Facility, an amount equal to the reduction in the Revolving Facility to be replaced by a Revolving Credit Commitment Increase). Each Term Commitment Increase shall be in a minimum principal amount of $50,000,000 and integral multiples of $1,000,000 in excess thereof; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility amount may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more less than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time$50,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Commitment Increases set forth above.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that Each notice from the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed that shall set forth 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion requested amount of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches relevant Revolving Credit Commitment Increase or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22Term Commitment Increase.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead (i) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request make available to each of the Lenders) pursuant ), request to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments effect one or more additional revolving credit facility tranches (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) or increases in an the aggregate principal amount not to exceed of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”; together with the Incremental CapRevolving Loans, “Incremental Revolving Facilities”) from Additional Revolving Lenders; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from that at the time to time between of each such request and upon the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms effectiveness of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementAmendment, (A) no Event of Default shall exist immediately prior have occurred and be continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower, (C) the Borrower shall have delivered a certificate of a Financial Officer to or after giving the effect to such Incremental Revolving Facility set forth in clauses (A) and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period), (D) in the case of a Revolving Commitment Increase, the maturity date of such Revolving Commitment Increase shall be the initial Borrowing under Revolving Maturity Date, such Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and such Revolving Commitment Increase shall be on the same terms governing the Revolving Commitments pursuant to this Agreement, (E) the interest rate margins and maturity applicable to any Incremental Revolving Loans shall be determined by the Borrower and the lenders thereunder, (F) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders with the same effect applicable Incremental Revolving Facilities and (G) any Incremental Revolving Loan may be provided in any currency as though such representations mutually agreed among the Administrative Agent, the Borrower and warranties had been made on and as of such datethe Additional Revolving Lenders; provided that to the extent that any representation such terms and warranty specifically refers documentation are not consistent with this Agreement (except to a given date the extent permitted by clause (E) or period(G) above), it they shall be true and correct in all material respects as of such date or for such periodreasonably satisfactory to the Administrative Agent; provided, further, that any representation no Issuing Bank or warranty that is qualified Swingline Lender shall be required to act as to “materiality,” “Material Adverse Effectissuing bank” or similar language shall be true and correct (after giving effect to “swingline lender” under any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capitalwithout its written consent. Notwithstanding anything to contrary herein, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision sum of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions aggregate principal amount of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably requirethe Incremental Revolving Facilities, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by aggregate principal amount of all Term Commitment Increases incurred after the Administrative Agent (the “Administrative Questionnaire”) Effective Date and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent aggregate principal amount of all Additional Notes issued after the Effective Date pursuant to Section 6.01(a)(xxiii) shall not exceed the sum of (x) $150,000,000 and Lenders (y) if on a Pro Forma Basis, the First Lien Leverage Ratio is less than or equal to 4.00 to 1.00 (provided that for purposes of calculating the First Lien Leverage Ratio any Revolving Commitment Increase shall have received all fees required be assumed to be paid in respect of such fully drawn), up to an additional $150,000,000 (the “Incremental Cap”). Each Incremental Revolving Facility or shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition Facilities set forth in clause (a)(v) above has been satisfiedabove.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a)
(i) The Lead At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) pursuant ), request to an Incremental Revolving Facility Amendment to increase the aggregate amount effect one or more additional tranches of Commitments of any existing Class of Commitments revolving credit commitments (any such increase, an “Incremental Revolving FacilityCredit Commitments” and the any related revolving credit loans thereunder, “Incremental Revolving Credit Loans”) or increases in an the aggregate principal amount not to exceed of the Revolving Credit Commitments under any existing Class (each such increase, a “Revolving Credit Commitment Increase”; together with the Incremental CapRevolving Credit Loans, “Incremental Revolving Credit Facilities”) from Additional Revolving Credit Lenders; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from that at the time to time between of each such request and upon the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms effectiveness of each Incremental Revolving Credit Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementAmendment, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and result therefrom, (B) the representations aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and warranties of Additional Notes that can be incurred at any time shall not, at such time, exceed the Loan Parties set forth in this Agreement and Incremental Cap, (C) the other Loan Documents Borrower shall be true and correct in all material respects compliance on and a Pro Forma Basis (treating any proposed Incremental Revolving Credit Facility as fully drawn, but not including the proceeds of any such deemed draw in the amount of cash to be netted in calculating such ratio) with the Financial Performance Covenant as of the date end of the initial Borrowing under most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time), (D) (i) in the case of any Incremental Revolving Credit Loans, the maturity date thereof shall be no earlier than the Revolving Credit Maturity Date, such Incremental Revolving Credit Loans shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date and (ii) any Revolving Credit Commitment Increase shall be on the same terms (and pursuant to the same documentation) governing the Revolving Credit Commitments pursuant to this Agreement (including upfront fees, but excluding customary arranger fees) and (E) the interest rate margins and, subject to clause (D), the amortization schedule applicable to any Incremental Revolving Credit Loans shall be determined by the Borrower and the Lenders thereunder and (F) any Incremental Revolving Credit Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Credit Lenders with the same effect as though such representations and warranties had been made on and as of such dateapplicable Incremental Revolving Credit Facilities; provided that to the extent that any representation such terms and warranty specifically refers documentation are not consistent with this Agreement (except to a given date or periodthe extent permitted by clauses (D) and (E) above), it they shall be true reasonably satisfactory to the Administrative Agent; provided further that no L/C Issuer or Swing Line Lender shall be required to act as “issuing bank” or “swingline lender” under any such Incremental Revolving Credit Facility without its written consent. Each Incremental Revolving Credit Facility shall be in a minimum principal amount of $5,000,000 and correct integral multiples of $1,000,000 in excess thereof unless such amount represents all material respects the remaining availability under the aggregate principal amount of Incremental Revolving Credit Facilities set forth above.
(ii) At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make a copy of such notice available to each of the Lenders), request to effect one or more additional tranches of term loans hereunder (“Incremental Term Loans”) or increases in the aggregate amount of the Term Commitments of any existing Class, which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase”; together with the Incremental Term Loans, the “Incremental Term Facilities”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (A) no Event of Default shall result therefrom, (B) the aggregate principal amount of all Incremental Revolving Credit Facilities, Incremental Term Facilities and Additional Notes that can be incurred at any time shall not, at such time, exceed the Incremental Cap at such time, (C) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant as of the end of the most recent Test Period (regardless of 101 #99361848v2 whether such Financial Performance Covenant is applicable at such time), (D) other than with respect to the incurrence of Incremental Term A Loans and Incremental Term Loans in the form of Term A Loans, the maturity date of any such Incremental Term Facility shall not be earlier than the Term B Maturity Date, (E) other than with respect to the incurrence of Incremental Term A Loans and Incremental Term Loans in the form of Term A Loans, the Weighted Average Life to Maturity of any such Incremental Term Facility shall not be shorter than the remaining Weighted Average Life to Maturity of the Term B Loans, (F) the interest rate margins and, subject to clause (E), the amortization schedule for any Incremental Term Facility shall be determined by the Borrower and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility made on or prior to August 22, 2018, in the event that the Effective Yield for any Incremental Term Facility is higher than the Effective Yield for the Term B Loans by more than 50 basis points, then the Effective Yield for the Term B Loans shall be increased to the extent necessary so that such Effective Yield is equal to the Effective Yield for such periodIncremental Term Facility minus 50 basis points; provided, further, that any representation that, in determining the Effective Yield applicable to the Incremental Term Facility and the Term B Loans (x) OID or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language upfront fees (which shall be true and correct (after giving effect deemed to any qualification thereinconstitute like amounts of OID) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited payable by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) Borrower to the relevant Term B Lenders or any Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would Term Lenders in the initial primary syndication thereof (with OID being equated to interest based on assumed four-year life to maturity) shall be required under Section 9.05(bincluded, (y) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender customary arrangement or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver commitment fees payable to the Administrative Agent and the Lead Borrower all such documentation Joint Bookrunners (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Documenttheir Affiliates) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
Agreement or to one or more arrangers (dor their Affiliates) As a condition precedent to the effectiveness of any Incremental Revolving Term Facility or shall be excluded and (z) if the making of any Incremental Revolving Term Facility includes an interest rate floor greater than the interest rate floor applicable to the Term B Loans, (i) upon its reasonable request, the Administrative Agent such increased amount shall have received customary written opinions be equated to interest margin for purposes of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, determining whether an administrative questionnaire, provided increase to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of interest margin for the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving LoansTerm B Loans shall be required, and
(B) to the extent applicablean increase in the interest rate floor in the Term B Loans would cause an increase in the interest rate then in effect, certifying and in such case the interest rate floor (but not the interest rate margin) applicable to the Term B Loans shall be increased by such increased amount and (G) any Incremental Term Facility Amendment entered into after the Closing Date shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Term Lenders with the applicable Incremental Term Facilities; provided that to the condition extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clause (F) above), they shall be reasonably satisfactory to the Administrative Agent. Each Incremental Term Facility incurred after the Closing Date shall be in a minimum principal amount of $10,000,000 and, except with respect to the Term Commitment Increase, integral multiples of $1,000,000 in excess thereof unless such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Facilities set forth in clause (a)(v) above has been satisfiedabove.
(i) Each Lender notice from the Borrower pursuant to this Section shall set forth the requested amount of the applicable Class relevant Incremental Revolving Credit Loan, Revolving Credit Commitment Increase, Incremental Term Loan or Term Commitment Increase. (ii) Commitments in respect of any Incremental Revolving Credit Loan or Revolving Credit Commitment Increase incurred after the Closing Date shall become Commitments (or in the case of any Revolving Credit Commitment Increase to be provided after the Closing Date by an existing Revolving Credit Lender, an increase in such Revolving Credit Lender’s Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Credit Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Revolving Credit Lenders and the Administrative Agent. Incremental Revolving Credit Loans and Revolving Credit Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Credit Facility or, unless it agrees, be obligated to provide any Incremental Revolving Credit Loan or Revolving Credit Commitment Increase) or by any other Additional Revolving Credit Lender. An Incremental 102 #99361848v2 Revolving Credit Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Revolving Credit Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Revolving Credit Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Credit Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Revolving Credit Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(iii) Commitments in respect of any Incremental Term Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Term Lenders and the Administrative Agent. Incremental Term Facilities may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Term Facility or, unless it agrees, be obligated to provide any Incremental Term Loan or Term Commitment Increase thereunder) or by any other Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent).
(i) Upon effectiveness of 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 relevant Incremental Additional Revolving Credit Lender providing a portion of such Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”), and each relevant Incremental such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to such Revolving Credit Commitment Increase and each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving LenderA) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans(B) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal such Revolving Credit Lender’s Pro Rata Share. Any Revolving Credit Loans outstanding immediately prior to the date of such Revolving Credit Commitment Increase that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, as applicableand all interest thereon will continue to accrue for the accounts of, the Revolving Credit Lenders holding such Loans immediately prior to the date of such Revolving Credit Commitment Increase, in each case until the last day of the then-current Interest Period
2.01 in accordance with the Pro Rata Shares of the Revolving Credit Lenders after giving effect to the Revolving Credit Commitment Increase; provided, however, that upon the occurrence of any Event of Default, each Revolving Credit Commitment Increase Lender will promptly purchase (for cash at face value) assignments of portions of such outstanding Revolving Credit Loans of other Revolving Credit Lenders so that, after giving effect thereto, all Revolving Credit Loans that are Eurocurrency Loans are held by the Revolving Credit Lenders in accordance with their then-current Pro Rata Shares. Any such assignments shall be held on a pro rata basis effected in accordance with the provisions of Section 11.07; provided that the parties hereto hereby consent to such assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 11.07(b)(ii) shall not apply thereto. If there are any Base Rate Revolving Credit Loans outstanding on the basis date of such Revolving Credit Commitment Increase, such Loans shall either be prepaid by the Borrower on such date or refinanced on such date (subject to satisfaction of applicable borrowing conditions) with Revolving Credit Loans made on such date by the Revolving Credit Lenders (including the Revolving Credit Commitment Increase Lenders) in accordance with their respective Commitments Pro Rata Shares. In order to effect any such refinancing, (i) each Revolving Credit Commitment Increase Lender will make Base Rate Revolving Credit Loans to the Borrower by transferring funds to the Administrative Agent in an amount equal to the aggregate outstanding amount of such Loans of such Type times a percentage obtained by dividing the amount of such Revolving Credit Commitment Increase Lender’s Revolving Credit Commitment Increase by the aggregate amount of the applicable class Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22Increase on such date) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to funds will be applied to finance an acquisition the prepayment of outstanding Base Rate Revolving Credit Loans held by the Revolving Credit Lenders other than the Revolving Credit Commitment Increase Lenders, and transferred by the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Administra
Appears in 1 contract
Incremental Credit Extensions. (ai) The Lead Borrower may, at any time, on Borrowers may from time to time after the Effective Date request one or more occasions deliver increases in the Revolving Credit Commitments (each, a written request “Revolving Credit Commitment Increase”); provided, however, that (A) the aggregate amount of all Revolving Credit Commitment Increases shall not exceed $300,000,000 and (B) each Revolving Credit Commitment Increase shall be in an amount not less than $20,000,000. Nothing in this Agreement shall be construed to obligate the Administrative Agent, any other Agent, any Arranger or any Lender to negotiate for (whether or not in good faith), solicit, provide or commit to provide any Revolving Credit Commitment Increase. The Administrative Agent shall promptly notify each Lender of each proposed Revolving Credit Commitment Increase. Each such Lender (and each of their Affiliates and Approved Funds) may, in its sole discretion, commit to participate in such Revolving Credit Commitment Increase by forwarding its commitment therefor to the Administrative Agent (whereupon in form and substance satisfactory to the Administrative Agent. The Administrative Agent shall, after consultation with the Parent Borrower, allocate, but in amounts not to exceed for each such Lender the commitment received from such Lender, Affiliate or Approved Fund, the Revolving Credit Commitment Increase commitments to be made as part of such Revolving Credit Commitment Increase to the Lenders from which it has received such written commitments. If the Administrative Agent shall promptly deliver a copy does not receive enough commitments from existing Lenders or their Affiliates or Approved Funds, it may, after consultation with the Parent Borrower, allocate to Eligible Assignees any excess of the proposed amount of such request to each Revolving Credit Commitment Increase agreed with the Parent Borrower over the aggregate amounts of the Lenders) pursuant to an Incremental commitments received from existing Lenders or their Affiliates or Approved Funds. Each Revolving Facility Amendment to increase Credit Commitment Increase shall become effective on a date agreed by the aggregate amount of Commitments of any existing Class of Commitments Parent Borrower and the Administrative Agent (any such increaseeach, an “Incremental Revolving Facility” Credit Extension Date”), which shall be in any case on or after the date of satisfaction of the conditions precedent set forth in Section 4.4. The Administrative Agent shall notify the Lenders and the loans thereunderParent Borrower, “on or before 1:00 p.m., New York City time, on the Business Day following an Incremental Credit Extension Date of the effectiveness of a Revolving Loans”) Credit Commitment Increase and shall record in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Register all applicable additional information in respect of such Revolving Credit Commitment may be less than $5,000,000,Increase.
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender (A) The commitments under each Revolving Credit Commitment Increase shall be obligated deemed for all purposes part of the Revolving Credit Commitments, (B) each Lender or Eligible Assignee participating in such Revolving Credit Commitment Increase shall become a Lender with respect to provide the Revolving Credit Commitments and all matters relating thereto and (C) the commitments under each Revolving Credit Commitment Increase shall have the same terms and conditions as the Revolving Credit Commitments. On the Incremental Credit Extension Date for any Revolving Credit Commitment Increase, each Lender or Eligible Assignee participating in such Revolving Credit Commitment Increase shall purchase and assume from each existing Lender having Revolving Loans outstanding on such Incremental Revolving CommitmentCredit Extension Date, without recourse or warranty, an undivided interest and participation, to the determination to provide such commitments shall be within the sole and absolute discretion extent of such Lender;
’s Ratable Portion of the new Revolving Credit Commitments (iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) Credit Commitment Increase), in the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental aggregate outstanding Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or periodLoans, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified so as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (ensure that, on the Incremental Credit Extension Date after giving effect to any qualification therein) in all respects such Revolving Credit Commitment Increase, each Revolving Lender is owed only its Ratable Portion of the Revolving Loans on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timeCredit Extension Date.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Sources: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Incremental Credit Extensions. (a) The Lead At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request make available to each of the Lenders) pursuant to request (i) one or more additional tranches of term loans (an “Incremental Revolving Facility Amendment to Term Facility”) and/or increase the aggregate principal amount of the Term Loans by requesting new term loan commitments to be added to such Loans (an “Incremental Term Increase”, and together with any Incremental Term Facility, the “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Commitments of any existing Class of Commitments tranche (any each such increase, an “Incremental Revolving Facility” Commitment Increase”, together with the Incremental Term Loans the “Incremental Facilities”); provided that, (i) conditions to entering into or the making of Incremental Term Loan or Incremental Revolving Commitment Increase, including as to the timing of any such condition (as between being made upon execution of an Incremental Facility Amendment (as defined below) or upon the making of any loans thereunder) shall be as agreed to between the Borrower and the loans thereunder, “relevant Additional Lenders (including the scope of any representations and warranties to be made) and (ii) after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan or Incremental Revolving Loans”) Commitment Increase is made or effected, no Default or Event of Default shall have occurred and be continuing (provided that, solely with respect to any Incremental Facilities incurred in an connection with a Limited Condition Acquisition, no Default or Event of Default shall exist at the time of execution of the definitive documentation for such Limited Condition Acquisition). Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $100,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(b) The Incremental Term Loans (i) shall rank equal or subordinate in right of payment with the Term Loans, shall be unsecured or, if secured, secured only by the Collateral securing the Secured Obligations on a pari passu or a junior basis and shall only be guaranteed by the Loan Parties (or a subset thereof); provided, that such Incremental Term Loans may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a Guarantor or a Domestic Regulated Subsidiary, (ii) shall not mature earlier than the Latest Maturity Date or, in the case of any such Indebtedness that is unsecured or is secured on a junior lien basis to the Term Facility, at least 91 days following the Latest Maturity Date, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Term Loans (without giving effect to any prepayments), (iv) shall have an amortization schedule (subject to clauses (ii) and (iii)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that in the event that the All-In Yield for any Incremental Term Loans incurred after the Effective Date that are pari passu in right of payment and with respect to security with the Term Loans incurred on the Effective Date is greater than the All-In Yield for the Term Loans by more than 0.50% per annum, then the All-In Yield for the Term Loans shall be increased to the extent necessary so that the All-In Yield for the Term Loans are equal to the All-In Yield for the Incremental Term Loans minus 0.50% per annum (provided that the “LIBOR floor” or the “ABR Floor” applicable to the outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” or “ABR Floor” applicable to such Incremental Cap; provided that:Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding) (“MFN Adjustment”), (v) to the extent applicable, the Administrative Agent, acting on behalf of the holders of such Indebtedness shall be or shall have become party to an intercreditor or subordination agreement reasonably satisfactory to the Administrative Agent, (vi) all terms and documentation with respect to any Incremental Facility shall be no more restrictive than the terms applicable to the existing Term Facility, as applicable unless such terms are (1) applicable after the Term Maturity Date of the then existing Term Facility or (2) offered to the existing Lenders for inclusion in the Loan Documents (but excluding any terms applicable after the Latest Maturity Date of the then existing Term Facility). In the case of an Incremental Term Loan that is pari passu in right of payment and right of security with the existing Term Loans, such Incremental Term Loans may provide for the ability to participate on a pro rata basis, or on less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Facility Amendment.
(ic) no The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Loans being increased. The Incremental Term Increase shall be treated the same as the Class of Term Loans being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Term Loans being increased. Any Incremental Revolving Commitment Increase and any Incremental Term Increase shall be on the same terms and subject to the same documentation as the Class of Revolving Loans or Class of Term Loans, as applicable, being increased.
(d) Any Incremental Revolving Commitment Increase shall be documented solely as an increase to the Commitments with respect to the Revolving Credit Facility and shall have terms and conditions identical to those of the Revolving Credit Facility.
(e) Each notice from the Borrower pursuant to this Section shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Commitment Increases.
(f) Commitments in respect of Incremental Term Loans and Incremental Revolving Commitment Increases pursuant to this Agreement shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility may be less than $5,000,000,
provided, subject to the prior written consent of the Borrower (ii) except as separately agreed from time not to time between the Lead Borrower and be unreasonably withheld), by any Lender, existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facilities or, unless it agrees, be obligated to provide any Incremental Revolving Commitment, Facilities) or by any Additional Lender. Incremental Term Loans and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any loans under Incremental Revolving Commitment or Incremental Revolving Increases pursuant to this Agreement shall be a “Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms ” for all purposes of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of Documents. The Incremental Facility Amendment may, subject to Section 2.14(c), without the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds consent of any Incremental Revolving Facility may be used for working capitalother Lenders, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the establishment relevant Revolving Lenders), including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such new tranches or sub-tranches or conditions as the maintaining parties thereto shall agree. The Borrower will use the proceeds of such single tranche, in each case on terms consistent with the Incremental Term Loans and Incremental Revolving Commitment Increases for any purpose not prohibited by this Section 2.22Agreement.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.20 shall supersede any provision provisions in Section 2.18 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, Borrowers may at any time, time or from time to time on one or more occasions deliver a written after the Effective Date request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy i) one or more additional Classes of such request to each term loans (each, an “Incremental Term Facility”), (ii) one or more additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments same Class of any existing Class of term loans (each, an “Incremental Term Increase”), (iii) one or more increases in the amount of the Revolving Commitments of any Class (any each such increase, an “Incremental Revolving Commitment Increase”) and/or (iv) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility” , Incremental Term Increase and the loans thereunderIncremental Revolving Commitment Increases, the “Incremental Revolving LoansFacilities”); provided that (x) after giving effect to any Incremental Facility Amendment referred to below and at the time that any such Incremental Facility is made or effected, no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, no Specified Event of Default) shall have occurred and be continuing and (y) in an no event shall it be a condition to the effectiveness of, or borrowing under, any Incremental Facility that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the Additional Lenders providing such Incremental Facility. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not to exceed the Incremental CapCap at such time. Each Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrowers and the Administrative Agent otherwise agree); provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,
(ii) except as separately agreed from time to time between 5,000,000 if such amount represents all the Lead Borrower and any Lender, no Lender shall be obligated to provide any remaining availability under the aggregate principal amount of Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties Facilities set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfiedabove.
(i) Each Lender The Incremental Term Facilities (a) shall (i) rank equal or junior in right of payment with the applicable Class immediately prior to such increase will automatically and without further act Amendment No. 1 Refinancing Term LoansLoan Document Obligations, (ii) if secured, be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of secured only by the Lenders’ Collateral securing the Secured Obligations (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase except in the Commitment pursuant to Section 2.22case of any Designated Alternative Security Debt) and (iiiii) only be guaranteed by the existing Lenders Loan Parties (except in the case of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facilityany Designated Alternative Security Debt), and such other Lenders (including b) except in the Lenders providing the relevant Incremental Revolving Facilitycase of any Designated Earlier Maturing Debt,, (b) shall purchase such Revolving Loansnot mature earlier than the Term Maturity Date, (c) except in each the case of any Designated Earlier Maturing Debt, with respect to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Amendment No. 4
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Sources: Credit Agreement (Viasat Inc)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Facility Agreement (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans of any existing Class (which in either case, may be in the form of delayed draw term loans) by requesting new commitments to provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of Incremental Revolving Facility Amendment to Commitments and/or increase the aggregate amount of Commitments of any existing Class of Incremental Revolving Commitments (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Facility may be less than $5,000,0005,000,000 (or such lesser amount to which the Administrative AgentBorrower may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) except as otherwise provided herein, the terms of each any Incremental Revolving Term Facility will be if not substantially identical to consistent with those applicable to any then-existing Term Loans shall be reasonably acceptable to the Administrative AgentRequired Lenders (it being agreed that (A) any terms contained in such Incremental Term Facility (x) which are applicable only after the then-existing Latest Term Loan Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Agreement and/or (z) that reflect market terms (taken as a whole) at the time of incurrence, issuance or effectiveness (as determined in good faith by the Borrower) shall in each case be deemed satisfactory to the Administrative AgentRequired Lenders) and (B) the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date) must be substantially consistent with those applicable to any then-existing Incremental Revolving Facility or, including with respect to the initial Incremental Revolving Facility, otherwise reasonably acceptable to the Administrative AgentRequired Lenders (it being understood and agreed that any terms that are consistent with any then-existing Term Facility (provided, that such terms may include a customary springing financial covenant that will only apply to an Incremental Revolving Facility) are, in each case, reasonably satisfactory to the Administrative AgentRequired Lenders),
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility consisting of Qualifying Term Loans incurred in reliance on clause (e) of the definition of “Incremental Cap” (and not by virtue of any reclassification permitted pursuant thereto), the Effective Yield applicable thereto may not be more than 1.00% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Term Facility, minus, 1.00%,
(vi) (A)(A) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any upfront feesIncremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and (B)(B) to the extent any ABL Facility is then currently outstanding, original issue discount any Incremental Revolving Facility will mature no earlier than, and will require no scheduled amortization or similar feesmandatory commitment reduction prior to, the maturity date of such ABL Facility,
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception, the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing Class of Term Loans (without giving effect to any prepayments thereof);,
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) except as otherwise agreed by above, to the lenders providing the relevant Incremental Revolving Facility extent applicable, any fees payable in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited Incremental Facility shall be determined by the terms Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with or junior to any then-existing Class of this Term Loans or Incremental Revolving Loans, as applicable, in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with, junior to or subordinated to any then-existing Class of Term Loans or Incremental Revolving Loans, as applicable, in right of payment or security, it shall be subject to an Acceptable Intercreditor Agreement, and shall not be secured by assets that are not Collateral) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi) any Incremental Term Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis or less than a pro rata basis with the then-outstanding Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent secured on a pari passu basis with the Initial Term Loans) or less than a pro rata basis with the then-outstanding Term Loans, in each case, to the extent provided in such Sections,
(xii) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such periodFacility; provided, furtherthat notwithstanding the foregoing, that in the case of any representation Incremental Facility incurred in connection with any acquisition, Investment or warranty that is qualified as irrevocable repayment or redemption of Indebtedness, only no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) shall exist immediately prior to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;Incremental Facility,
(vixiii) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and other general corporate purposes (including Permitted Acquisitions, Investments and Restricted Payments) and any other purpose use not prohibited by this Agreement; , and
(viixiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding Term SOFR Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, Lender or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any Additional Lender that is an Affiliated Lender or a Debt Fund Affiliate shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAgreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and the relevant Additional Lenders shall have received be entitled to receive all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(g), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(Ai) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(Bii) to the extent applicable, certifying that the condition set forth in clause (a)(va)(xii) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Incremental Revolving Commitments of the applicable same Class as any then-existing Class of Incremental Revolving Commitments, (i) each Additional Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Lenderexisting Additional Revolving ▇▇▇▇▇▇’s participations hereunder in outstanding US Letters letters of Credit and/or Canadian Letters of Credit credit and Swingline Loans, as swingline loans (to the extent applicable, ) such that, after giving effect to each deemed assignment and assumption of participations, all of the Additional Revolving Lenders’ (including each new Incremental Revolving Facility Lender’s) (A) participations hereunder in US Letters letters of Credit and/or Canadian Letters of Credit credit and Swingline Loans, as applicable, (B) participations hereunder in swingline loans shall be held on a pro rata basis ratably on the basis of their respective Additional Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Additional Revolving Credit Commitment pursuant to this Section 2.22) and (ii) the existing Additional Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Additional Revolving Lenders of such Class (including the Incremental Revolving Facility Lenders providing the relevant Incremental Revolving Facility), and such other Additional Revolving Lenders (including the new Incremental Revolving Facility Lenders providing the relevant Incremental Revolving Facility) shall purchase such Additional Revolving Loans, in each case to the extent necessary so that all of the Additional Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Additional Revolving Loans of such Class pro rata on the basis of their respective Additional Revolving Credit Commitments of such Class (after giving effect to any increase in the Additional Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei); and
(ii) if such Incremental Revolving Facility establishes Incremental Revolving Commitments of a new Class in addition to any existing Additional Revolving Credit Commitment, then (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the Additional Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Additional Revolving Facility and (z) as provided in clause (C) below) of Additional Revolving Loans with respect to any then-existing Additional Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other Additional Revolving Facilities, (B) swingline loans and letters of credit shall be participated on a pro rata basis by all Additional Revolving Lenders and (C) no permanent repayment of Additional Revolving Loans with respect to, and reduction and termination of Additional Revolving Credit Commitments under, any Incremental Revolving Facility after the effective date of such new Incremental Revolving Facility shall be made on a greater than pro rata basis than any other then-existing Additional Revolving Facilities.
(f) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this enter into any Incremental Facility Agreement and the and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.22, and as may be necessary or advisable in order to create a fungible tranche of loans (including by increasing the amortization on existing tranches of loans) so long as any such amendments do not adversely affect Lenders holding the existing loans.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.SunGa
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead At any time and from time to time after the Second Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make such request notice available to each of the Lenders) ), pursuant to an Incremental Revolving Facility Amendment (“Incremental Amendment”) request to increase effect (i) one (1) or more additional term loan facilities hereunder or increases in the aggregate amount of Commitments of any existing Class of Commitments Term Facility (any each such increase, a “Term Commitment Increase”) from one (1) or more Additional Term Lenders or (ii) up to two (2) additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and the loans thereundertogether with any Term Commitment Increase, “any Incremental Term Facility and any Incremental Revolving LoansCredit Facility, a “Commitment Increase”) in an aggregate principal amount not to exceed the Incremental Capfrom Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(vA) except as otherwise agreed by the lenders Additional Lenders providing the relevant an Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of to finance an Acquisition permitted under this Agreement, (A) no Default or Event of Default shall have occurred and be continuing or would exist immediately prior to or after giving effect to such Incremental Revolving Facility and thereto,
(B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under incurrence or effectiveness of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), or, at the Borrower’s election to the extent incurred in connection with an Acquisition, on the date of the signing of any acquisition agreement with respect thereto, the Borrower shall be in compliance, on a Pro Forma Basis, with the same financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) or (b); provided that if the Borrower has made the election to measure such compliance on the date of the signing of an acquisition agreement, in connection with the calculation of any ratio with respect to the incurrence of Indebtedness or Liens, or the making of investments, Distributions, Restricted Debt Payments, asset sales, fundamental changes or the designation of an Unrestricted Subsidiary on or following such date and prior to the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated, such ratio shall be calculated on a Pro Forma Basis assuming such Acquisition and any other Specified Transactions in connection therewith (including the incurrence of Indebtedness) have been consummated, except to the extent such calculation would result in a lower Leverage Ratio or Senior Secured Leverage Ratio or a higher ratio of Consolidated EBITDA to Interest Expense than would apply if such calculation was made without giving Pro Forma Effect to such Acquisition, other Specified Transactions and Indebtedness,
(C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A-3 Termination Date then in effect,
(D) each Incremental Term B Facility and each other Incremental Term Facility (other than an Incremental Term A Facility) shall have a final maturity date no earlier than the Term B Termination Date latest final maturity date of any Class of Term B Loans then in effect,
(E) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A-3 Loans then outstanding,
(F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than an Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of theany Class of Term B Loans then outstanding,
(G) any Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the commitments related thereto prior to, the Revolving Credit Termination Date then in effect as though and all other terms of any such representations Incremental Revolving Credit Facility (except with respect to margin, pricing and warranties had been made on fees and as set forth in the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility) shall be substantially identical to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent,
(H) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the Additional Lenders providing such Incremental Facility or Incremental Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to security with any then existing Term B Loans (the “Relevant Existing Facility”), such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the Relevant Existing Facility unless the interest rate with respect to the Relevant Existing Facility is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus 0.50%; provided, further, that in determining the applicable interest rate under this clause (H): (w) original issue discount (“OID”) or upfront fees paid in connection with the Relevant Existing Facility or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity), shall be included, (x) any amendments to or changes in the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Second Restatement Effective Date but prior to the time of (or concurrently with) the addition of such dateIncremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their affiliates) in their respective capacities as such in connection with the Relevant Existing Facility or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Relevant Existing Facility, and such floor is applicable to the Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase,
(I) to the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses and clause (J) below and other than any terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall be reasonably satisfactory to the Administrative Agent,
(J) all Incremental Facilities shall rank pari passu or junior in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans or may be unsecured; provided that to the extent that any representation such Incremental Facilities are subordinated in right of payment or right of security, or pari passu in right of security and warranty specifically refers subject to a given date or periodseparate documentation, it they shall be true and correct in all material respects as of such date or for such periodsubject to intercreditor arrangements reasonably satisfactory to the Administrative Agent; provided, further, provided further that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any no Incremental Revolving Facility may be used secured by any Collateral (or assets that would constitute Collateral if the Obligations were secured by such assets) at any time that the Obligations are not secured by the Collateral as a result of any release of Collateral pursuant to Section 9.13,
(K) no Incremental Facility shall be guaranteed by any Person which is not the Borrower or a Guarantor,
(L) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment with any then-existing Term Loans shall be made on a pro rata basis with such then-existing Term Loans (and all other then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the Additional Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(M) the Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with subclause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for working capitalwhich the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.1(e), general corporate purposes be accompanied by a reasonably detailed calculation of Consolidated EBITDA and any other purpose not prohibited by this Agreement; Interest Expense for the relevant period), and
(viiN) at no time all fees or other payments owing pursuant to Section 10.13 or as otherwise agreed in writing in respect of such Commitment Increase to the Administrative Agent and the Additional Lenders shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timehave been paid.
(b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases (for the avoidance of doubt, excluding any Commitment Increases made on the Second Restatement Effective Date) shall not exceed (i) $650.0 million (less the aggregate principal amount of Incremental Equivalent Debt incurred pursuant to Section 6.14(u) in reliance on this clause (i) of the Incremental Cap) (the “Fixed Dollar Incremental Amount”), plus (ii) an unlimited amount so long as in the case of this clause (ii), (A) if the Commitment Increase is secured, the Senior Secured Leverage Ratio does not exceed 4.85:1.00 or (B) if the Commitment Increase is unsecured, the Leverage Ratio does not exceed 5.50:1.00, in each case under subclauses (A) and (B) hereof, determined on a Pro Forma Basis after giving effect to such Commitment Increase (in the case of the incurrence of an Incremental Revolving Commitments may Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full) and any related transaction as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be provided by any existing Lender, delivered pursuant to Section 6.1(a) or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(bb) (any such other lender being called an amount under this clause (ii), the “Additional Revolving LenderRatio-Based Incremental Amount”); provided that unless the Administrative Agent and Borrower otherwise elects, any Issuing Bank portion of any Commitment Increase that could be established in reliance on this clause (ii) at the time of incurrence shall be deemed to have consented been incurred in reliance on the Ratio-Based Incremental Amount without reducing the Fixed Dollar Incremental Amount plus (such consent not iii) in the case of a Commitment Increase that serves to be unreasonably withheld effectively extend the maturity of any Term Facility or delayed) the Revolving Facility, an amount equal to the relevant Additional Revolving Lender’s provision amount of the Loans and/or Commitments so extended, plus (iv) in the case of a Commitment Increase that effectively replaces the amount of any Loans or Commitments terminated in connection with Section 8.5, an amount equal to the portion of such Loans or Commitments so replaced (the total aggregate amount described under clauses (i) through (iv) hereof, the “Incremental Revolving Commitments Cap”). Each Commitment Increase shall be in a minimum principal amount of $50.0 million and integral multiples of $1.0 million in excess thereof; provided that such amount may be less than $50.0 million if such consent would be required amount represents all the remaining availability under Section 9.05(b) for an assignment the aggregate principal amount of Revolving Loans to such Additional Revolving LenderCommitment Increases set forth above.
(c) Each Lender or Additional Revolving Lender providing a portion notice from the Borrower pursuant to this Section shall set forth the requested amount of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this AgreementCommitment Increase.
(d) As a condition precedent to Upon the effectiveness implementation of any Incremental Revolving Credit Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided Credit Commitment Increase pursuant to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereofthis Section 2.14:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each with respect to any Revolving Credit Commitment Increase, (A) each Revolving Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Additional Revolving Lender, and each relevant Incremental Additional Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s Participating Interests and participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Additional Revolving Lender’s) Participating Interests and participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Loans shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22Increase) and (iiB) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase), and such other Revolving Lenders (including the Additional Revolving Lenders providing the relevant Incremental Revolving FacilityCredit Commitment Increase) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans of such Class pro rata on the basis of their respective Commitments of such Class Revolver Percentage (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22Increase); it being understood and agreed 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 the immediately preceding sentence; and
(ii) with respect to any Incremental Revolving Credit Facility, (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the existing Revolving Facilities and such Incremental Revolving Credit Facility, (y) repayments required upon the maturity date of the then-existing Revolving Facility and such Incremental Revolving Credit Facility and (z) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (eC) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, (B) all swingline loans or letters of credit made or issued, as applicable, under such Incremental Revolving Credit Facility shall be participated on a pro rata basis by all Revolving Lenders and (C) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Credit Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit Facility, except that the Borrower shall be permitted to permanently repay and terminate commitments under any revolving facility on a greater than pro rata basis as compared with any other revolving facility with a later maturity date than such revolving facility.
(fe) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds Effective on the date of effectiveness of any each Incremental Revolving Credit Facility are intended to be applied to finance the maximum amount of Letter of Credit Usage permitted hereunder shall increase by an acquisition amount, if any, agreed upon by Administrative Agent, the L/C Issuer and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionalityBorrower.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Sources: Incremental Amendment (Vantiv, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of (other than any existing Class of Commitments Initial Peak Season Commitment) then in effect (any such increase, an “Incremental Revolving Facility” ”; the commitment thereunder, an “Incremental Revolving Commitment”; and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed (x) with respect to the FILO Incremental Revolving Facility under clause (b) below, the Incremental FILO Cap, (y) with respect to the Additional European Incremental Revolving Facility, the Incremental European Cap and (z) with respect to each other Incremental Revolving Facility, the Incremental Cap; provided that:
, with respect to any Incremental Revolving Facility (i) no including, for the avoidance of doubt, the FILO Incremental Revolving Facility and the Additional European Incremental Revolving Facility), except as expressly set forth below: ▇▇▇▇▇.▇▇ Incremental Revolving Commitment may (A) be less than $5,000,000,
5,000,000 (iiunless otherwise agreed by the Administrative Agent in its Permitted Discretion) except or (B) increase any Initial Peak Season Commitment, xlviii.except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no ; ▇▇▇▇.▇▇ Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless except (i) if its rights and interests are adversely affected in any material respectrespect or (ii) if otherwise expressly set forth in this Section 2.22) or any other agent or arranger;
(iv) ; provided that, unless otherwise consented to by the Administrative Agent, the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any FILO Incremental Revolving Facility or the making of any Additional European Incremental Revolving Loans, (i) upon its reasonable request, Facility shall be administratively feasible to the Administrative Agent shall have received customary written opinions of counsel, (as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender determined by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facilitygood faith), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.;
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to (i) add one or more new tranches of term facilities and/or increase the aggregate principal amount of Commitments of the Initial Term Loans or any existing Class of Commitments Additional Term Loans by requesting new term loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) the terms of each any such Incremental Revolving Facility will shall either (A) be substantially identical to those applicable subject to the same terms and conditions as any then-existing Revolving Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall be substantially consistent with the Initial Revolving Loans or shall be reasonably satisfactory to the Administrative Agent; provided, that if any financial maintenance covenant is added to any such Incremental Revolving Facility and such financial maintenance covenant is more favorable to the lenders under such Incremental Revolving Facility than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Borrower, any applicable “equity cure” provisions with respect to any upfront feessuch financial maintenance covenant) (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, original issue discount no consent shall be required from the Administrative Agent or similar feesany Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the applicable Latest Revolving Loan Maturity Date);,
(v) except the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated Dollar denominated Incremental Term Facility that is (x) originally incurred in reliance on clause (a) or clause (e) of the definition of “Incremental Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled to mature prior to the date that is one year after the Initial Term Loan Maturity Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Amendment No. 2 Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Amendment No. 2 Term Loans is adjusted such that the Effective Yield on the Amendment No. 2 Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility (this proviso, the “MFN Provision”); provided, further, that any increase in Effective Yield applicable to any Amendment No. 2 Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or LIBO Rate floor applicable to such Amendment No. 2 Term Loans or an increase in the interest rate margin applicable to such Incremental Loans; provided further that the MFN Provision shall not apply to Incremental Term Facilities having an aggregate principal amount not exceeding $20,000,000 (as selected by the Borrower),
(vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise agreed replace such bridge loans shall be subject to the requirements of this clause (vi) and (ii) the Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Borrower),
(vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Amendment No. 2 Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii) or (ii) Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Borrower),
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) above, to the relevant Incremental Revolving Facility extent applicable, any fees payable in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited Incremental Facility shall be determined by the terms of this Agreement, Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) each Incremental Facility shall rank pari passu with the Amendment No. 2 Term Loans (in the case of any Incremental Term Facility) and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi) any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b),
(xii) no Event of Default under Section 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Revolving Facility and (Bexcept in connection with any acquisition or other Investment or irrevocable notice of repayment or redemption of Indebtedness, where no such Event of Default shall exist at the time as elected by the Borrower pursuant to Section 1.04(e)),
(xiii) except as otherwise required or permitted in clauses (v) through (xi) above, all other terms of any Incremental Term Facility shall be as agreed between the representations and warranties of the Loan Parties set forth in this Agreement Borrower and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under lenders providing such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialityTerm Facility,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixiv) the proceeds of any Incremental Revolving Facility may be used for working capital, Capital Expenditures and other general corporate purposes of the Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments and any other purpose not prohibited by this Agreement; the terms of the Loan Documents), and
(viixv) at no time on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall there be more than three separate Maturity Dates added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in effect each then outstanding borrowing of Initial Term Loans or Additional Term Loans, as applicable, of the same type with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timethe same Interest Period of the respective Class.
(b) Incremental Revolving Commitments may be provided by any existing Lender, Lender or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender Eligible Assignee being called an “Additional Revolving Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Swingline Lender and any Issuing Bank Bank) shall have consented (such consent not to be unreasonably withheld withheld, conditioned or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided; further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii1) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iviii) upon its request, the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(xii) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each if such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments (rather than by establishing a new Class of Revolving Loans), (i) each Revolving Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and (B) participations hereunder in Swingline Loans, as applicable, Loans shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei).; and
(fii) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agreeis implemented pursuant to a request to add one or more new tranches of revolving commitments, (1) the availability thereof borrowing and repayment (except for (A) payments of interest and fees at different rates on the existing Revolving Facilities and such Incremental Revolving Facility, (B) repayments required upon the Maturity Date of the then-existing Revolving Facility and such Incremental Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments shall be subject to customary “SunGard” made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Facility, (2) all swingline loans and/or letters of credit made or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shallissued, to extent as applicable, under such Incremental Revolving Facility shall be subject in participated on a pro rata basis by all respects Revolving Lenders and (3) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Facility shall be made on a pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Facility, except that the Borrower shall be permitted to Section 1.11.perma
Appears in 1 contract
Sources: First Lien Credit Agreement (Isos Acquisition Corp.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new term loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Revolving Facility Amendment to Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving commitments and/or increase the aggregate amount of Commitments of Total Revolving Credit Commitment or any existing Class of Commitments Additional Revolving Commitment (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount, when aggregated with the aggregate principal amount of all Incremental Equivalent Debt issued or incurred pursuant to Section 6.01(z), not to exceed the Incremental Cap, which Incremental Facilities may be denominated in U.S. Dollars or AlternativeAgreed Currencies (with the interest rate calculations in respect of AlternativeAgreed Currencies not already provided for in this Agreement to be defined in a manner mutually satisfactory to the Lead Borrower and the Administrative Agent); provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,00010,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its #94168740v7#95106251v8 capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) (A) except as otherwise provided herein, the terms of each Incremental Revolving Facility (other than any terms which are applicable only after the thenexisting maturity date with respect to the Revolving Facility or any Additional Revolving Facility, as applicable, and other than as permitted under clause (v) below), will be substantially identical to those applicable to the Revolving Facility or otherwise reasonably satisfactory to the Lead Borrower and the Administrative Agent and (other B) no Incremental Revolving Facility will mature earlier than the thenapplicable Latest Revolving Loan Maturity Date or require any scheduled amortization or mandatory commitment reduction prior to such Maturity Date,
(v) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Lead Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided that, except with respect to any upfront feesIncremental Term Loans (I) that are used to finance a Permitted Acquisition or other permitted Investment, (II) that mature more than 12 months after the Initial Term Loan Maturity Date and/or (III) that are incurred on and after the 12 month anniversary of the First Amendment Effective Date, in the case of any Incremental Term Facility or Incremental Term Loans (other than a customary bridge facility) which are broadly syndicated, funded in U.S. Dollars and are pari passu with the Initial Term Loans in right of payment and with respect to security and that are incurred under clause (e) of the Incremental Cap (other than through reallocation), such all-in-yield will not be more than 0.50% higher than the corresponding all-in-yield applicable to the Initial Term Loans unless the interest rate margin with respect to the Initial Term Loans is adjusted so that the all-in-yield is equal to the all-in-yield with respect to the relevant Incremental Term Facility or Incremental Term Loans, minus 0.50%; provided, further, that in determining the applicable interest rate under this clause (v): (w) original issue discount or similar upfront fees paid by the Lead Borrower in connection with the Initial Term Loans or any Incremental Term Facility (based on a fouryear average life to maturity), shall be included, (x) any amendments to the Applicable Rate in respect of the Initial Term Loans that became effective subsequent to the First Amendment Effective Date but prior to the time of the addition of the relevant Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees);, consent fees and any amendment fees (regardless of whether such fees are paid to or shared in whole or in part with any lender) paid or payable by the Lead Borrower to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Initial Term Loans or any Incremental Term Facility in the same currency or to one or more arrangers (or their affiliates) in their capacities as such applicable to the relevant Incremental Term Facility or Incremental Term Loans and any other fees not paid by the Lead Borrower to all relevant lenders generally shall be excluded and (z) if the relevant Incremental Term Facility or Incremental Term Loans in the same currency include any interest rate floor that is greater than that applicable to the existing Initial Term Loans in the same currency, and such floor is applicable to such existing Initial Term Loans on the date of determination, the excess amount shall be equated to interest margin for determining the applicable interest rate, but only to the extent an increase in the interest rate floor in the existing Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, at the election of the Lead Borrower, the interest rate floor (but not the interest rate margin) applicable to the existing Initial Term Loans may be increased to the extent of such differential between interest rate floors to adjust the all-in-yield of the Initial Term Loans to maintain the relevant differential,
(vvi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time of the incurrence thereof, #94168740v7#95106251v8
(vii) the amortization requirements for such Incremental Term Loans may differ so long as the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the thenexisting tranche(s) of Term Loans (without giving effect to any prepayments thereof),
(viii) (A) any Incremental Term Facility shall rank pari passu with any thenexisting tranche of Revolving Loans in right of payment and shall rank pari passu with any thenexisting tranche of Revolving Loans with respect to security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral (other than, in the case of any Incremental Facility incurred by an Additional Borrower as a NonU.S. Facility, a NonU.S. Facility which may be guaranteed by Persons that are not Loan Parties on the date when such NonU.S. Facility is established and secured by any collateral in a nonU.S. jurisdiction provided that such Additional Borrower, the additional Persons that provide guarantees and collateral and the Administrative Agent on behalf of the Lenders (including the Lenders that provide such Incremental Facility) enter into an agreement that contains customary collateral allocation mechanism sharing provisions between such NonU.S. Facility and the U.S. Credit Facilities),
(ix) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu with any previously incurred and then-existing Term Loans in right of payment and security shall be made on a pro rata basis with such previously incurred and existing Term Loans, except that the Lead Borrower and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(x) [reserved],
(xi) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisitionLimited Condition Acquisition (which shall be subject to Section 2.22(i)), investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such incremental facility,
(xii) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility and in connection with any Limited Condition Acquisition (B) the which shall be subject to Section 2.22(i)), all representations and warranties of the Loan Parties set forth in this Agreement Article 3 and the in each other Loan Documents Document shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the applicable closing date in respect of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that , except to the extent that any representation such representations and warranty specifically refers warrants expressly relate to a given date or periodan earlier day, it in which case they shall be true and correct in all material respects (or, if qualified by materiality, in all respects) as of such date or for such period; provided, further, that earlier date.
(xiii) the terms of any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language Incremental Term Facility shall be true as agreed between the Lead Borrower and correct (after giving effect to any qualification therein) in all respects on the Lenders providing such respective datesIncremental Term Loans;
(vixiv) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and other general corporate purposes and any other purpose use not prohibited by this Agreement;
(xv) on the date of the making of any Incremental Term Loans that will be added to any Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such #94168740v7#95106251v8 Incremental Term Loans will participate proportionately in each then outstanding borrowing of such Term Loans, as applicable, of the same type with the same Interest Period of the respective Class; and
(viixvi) unless the Administrative Agent agrees otherwise, at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental the Revolving Facilities Facility and any other existing Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility and any Issuing Bank Bank) shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided further that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iviii) the Administrative Agent shall have received a certificate of the applicable Lead Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Lead Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(xi) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each if such Incremental Revolving Facility is implemented by increasing the amount of thenexisting Total Revolving Credit Commitments (rather than by implementing a new tranche of Revolving Loans), (i) each Revolving Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participationsparticipations (and after taking into account the Ancillary Commitments of each Multicurrency Revolving Lender), all of the Revolving #94168740v7#95106251v8 Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans and participate hereunder in Letters of Credit pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei).;
(fii) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agreeis implemented pursuant to a request to add one or more new tranches of revolving commitments of the same Class as the Revolving Facilities, (1) the availability thereof borrowing and repayment (except for (A) payments of interest and fees at different rates on the existing Revolving Facilities and such Incremental Revolving Facility, (B) repayments required upon the Maturity Date of the thenexisting Revolving Facility and such Incremental Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Commitments shall be subject to customary “SunGard” made on a pro rata basis with the thenexisting Revolving Facility and any other then outstanding Incremental Revolving Facility, (2) all letters of credit made or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shallissued, to extent as applicable, be subject in all respects to Section 1.11.under such Incremental
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver make a copy of such request notice available to each of the Lenders) pursuant ), request one or more additional tranches or, in consultation with the Administrative Agent, additions to an existing tranche of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”; the aggregate commitments thereunder, the “Incremental Term Loan Commitments”) or one or more increases in the amount of Commitments of any existing Class of Commitments the Revolving Commitment (any such increase, an a “Revolving Commitment Increase”; the commitments thereunder, the “Incremental Revolving FacilityCommitments” and, collectively, with the Incremental Term Loan Commitments, the “Incremental Commitments”); provided that (i) after giving effect to the making of such Incremental Term Loans or the incurrence of any Revolving Commitment Increase, the aggregate principal amount of all Incremental Term Loans and Incremental Revolving Commitments incurred pursuant to this Section 2.19 (together with any Incremental Equivalent Debt incurred pursuant to Section 7.03(s) after the Closing Date) shall not exceed (x) $346,000,000 (provided that $35,000,000 of such amount under this clause (x) shall solely be available for Revolving Commitment Increases) plus (y) an unlimited additional amount, so long as on a Pro Forma Basis after the incurrence of such Incremental Term Loans and such Incremental Revolving Commitments (A) if such Incremental Loan ranks pari passu in right of security on the Collateral with the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the First Lien Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 and (B) if such Incremental Loan ranks junior in right of security on the Collateral to the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the Senior Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 (it being understood that (1) any Incremental Loan may be incurred under clause (y) prior to clause (x) and regardless of whether there is capacity under clause (x), (2) to the extent that both clause (x) and clause (y) are available and the loans thereunderBorrower does not make an election, the Borrower will be deemed to have elected clause (y), (3) any amounts incurred under clause (x), the Revolving Facility, Sections 7.03(e), 7.03(m), 7.03(r), 7.03(t), 7.03(u), 7.03(z), 7.03(bb), 7.03(s)(x) or 7.03(w), in each case, together with any amounts incurred to fund original issue discount (“OID”) and upfront fees, that is concurrently incurred with, or incurred in a single transaction or series of related transactions with, amounts under clause (y) will not count as Indebtedness for the purpose of calculating the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, in clause (y) and (4) any portion of any Incremental Term Loans or any Incremental Revolving Loans”Commitments incurred in reliance on clause (x) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (y) if the Borrower meets the applicable First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, under clause (y) at such time on a Pro Forma Basis (for purposes of clarity, with any such reclassification having the effect of increasing the Borrower’s ability to incur Indebtedness under clause (x) on and after the date of such reclassification by the amount of Indebtedness so reclassified)); provided, further, that for purposes of the calculation of the First Lien Leverage Ratio and the Senior Secured Leverage Ratio used in determining the availability of Incremental Term Loans or Incremental Revolving Commitments under this Section 2.19(a), (i) any cash proceeds of any Incremental Term Loans or the Incremental Revolving Commitments, as applicable, then being incurred will not be netted for purposes of determining compliance with the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, and (ii) the full amount of any Incremental Revolving Commitments then being incurred shall be deemed to be Indebtedness then outstanding (whether or not then incurred). Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than $5,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,5,000,000 if such amount represents all remaining availability under the limit set forth in the preceding sentence).
(iib) except as separately agreed from time to time between The terms, provisions and documentation of the Lead Borrower and any Lender, no Lender Incremental Revolving Commitments shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar feesfees and, for the avoidance of doubt, any structuring, arrangement, underwriting or other similar fees not shared with all lenders providing the applicable Incremental Revolving Commitments) to the Revolving Commitments existing hereunder on the closing date of such Incremental Revolving Commitments. The following terms shall apply to any Incremental Term Loans established pursuant to an Incremental Amendment: (i) such Incremental Term Loans (A) shall rank pari passu in right of payment with all other Term Loans, (B) shall be secured by the Collateral on a pari passu or junior basis with all other Term Loans, (C) shall not be guaranteed by any person other than a Guarantor and (D) shall not be secured by any assets other than the Collateral, (ii) the maturity date of such Incremental Term Loans shall not be earlier than the OriginalExtended Term Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be less than the remaining Weighted Average Life to Maturity of the then outstanding Initial2021 New Term Loans (provided that the effects of any scheduled amortization or prepayments made on the Initial2021 New Term Loans prior to the Increased Amount Date shall be disregarded);
, (iv) if such Incremental Term Loan ranks pari passu in right of security with the existing Term Loans, such Incremental Term Loan may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments under the Loan Documents, as specified in the applicable Incremental Amendment (provided, however, that any Incremental Term Loan may participate on a greater than pro rata basis, on a pro rata basis or on a less than pro rata basis in any voluntary prepayments), (v) subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Incremental Term Loan shall be determined by the Borrower and the lenders thereunder, (vi) the applicable all-in yield relating to any Incremental Term Loans incurred under clause (y) of Section 2.19(a) pursuant to such Incremental Amendment (each facility thereunder, an “Incremental Facility”), if such Incremental Term Loans are (A) secured on a pari passu basis with the Initial Term Loans and (B) made on or prior to the date that is eighteen (18) months after the Closing Date, shall not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum unless the all-in yield applicable to the Initial Term Loans is increased so that the all-in yield applicable to the applicable Incremental Facility does not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum; provided that, in determining the all-in yield applicable to the Initial Term Loans and the applicable Incremental Facility, (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the applicable Incremental Facility), (B) structuring, arrangement, underwriting, ticking and commitment and other fees not shared with all lenders providing the Initial Term Loans or the applicable Incremental Facility, and, if applicable, consent fees for an amendment paid generally to consenting lenders, shall be excluded and (C) if the Adjusted LIBO Rate in respect of such Incremental Facility includes a floor in excess of 1.00%, or the Alternate Base Rate in respect of such Incremental Facility includes a floor in excess of 2.00%, such excess shall be equated to interest margin for purposes of determining any increase to the applicable all-in yield under the Initial Term Loans (except to the extent such floor does not result in an increase in interest rate) and any increase in the all-in yield applicable to the Initial Term Loans required due to the application of such floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) such floor in respect of the Initial Term Loans, (vii) subject to clause (vi) above, any fees payable in connection with any such Incremental Term Loan shall be determined by the Borrower and the arrangers providing for such Incremental Term Loan and (viii) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisitionrequired or permitted above, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the all other terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and Term Loans (Bother than (1) provisions applicable only to periods after the representations and warranties Latest Maturity Date of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and then-existing Term Loans (as of the date of the initial Borrowing under incurrence of such Incremental Revolving Facility Term Loans) and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms (which shall be determined by the Borrower)) are either (I) customary market terms for Indebtedness of such type at the time of incurrence (taken as a whole) (as determined in good faith by the Borrower) or (II) substantially identical to, or when taken as a whole, are not materially more restrictive with respect to the same effect as though such representations and warranties had been made on and Restricted Group than the terms of the Term Loans (as of the date of incurrence of such date; provided Incremental Term Loans), in each case under this clause (viii)(II), unless the then-existing Term Loans (other than any then-existing Term Loans secured on a junior basis to the Incremental Term Loans) (as of the date of incurrence of the Incremental Term Loans) receive the benefit of such more favorable terms through the then Latest Maturity Date (for the avoidance of doubt, it is understood that to the extent that any representation and warranty specifically refers to a given date or periodfinancial maintenance covenant is added for the benefit of such Incremental Term Loans, it no consent shall be true and correct in all material respects as required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender Term Loans (other than any Disqualified Institutionthen-existing Term Loans secured on a junior basis to the Incremental Term Loans) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”then outstanding); provided that the Administrative Agent and any Issuing Bank Incremental Term Loan Facility secured on a junior basis to all other Term Loans shall have consented (such consent not be subject to be unreasonably withheld or delayed) a Second Lien Intercreditor Agreement. Notwithstanding anything to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans contrary in this Agreement, to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion the extent the terms of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment Term Loan or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, are favorable to the existing Lenders, such thatterms may be, after giving effect to each deemed assignment and assumption in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving or Classes of Loans to certain other Lenders without further amendment requirements, including, for the avoidance of such Class (including doubt, at the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all option of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to Borrower, any increase in the Commitment Applicable Margin relating to any existing Class to achieve “fungibility” with such existing Class of Loans.
(c) Each notice from the Borrower pursuant to this Section 2.222.19 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increase (each, an “Incremental Loan”); it being understood , as applicable, and agreed that (ii) the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply date on which the relevant increase is requested to become effective (the transactions effected pursuant to this clause (e“Increased Amount Date”).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new tranches of term facilities or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) or (ii) add one or more new tranches of Incremental Revolving Commitments or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time subject to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving LoanSection 2.22(i), on the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to date that such Incremental Revolving Facility and (B) becomes effective, the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the such date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or periodan earlier date, it shall be true and correct in all material respects as of such date or for such periodearlier date; provided, further, that any representation or warranty representations and warranties that is are qualified as to by “materiality,” material”, “Material Adverse Effectmaterial adverse effect” or a similar language term shall be true and correct in all respects;
(ii) except as otherwise agreed by the Borrower and any Lender in the relevant Incremental Facility Amendment, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(A) except as otherwise expressly provided in this Section 2.22, the terms of any Incremental Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Term Loans) must be substantially consistent with those applicable to the Tranche B-2 Term Loans and 2021 Incremental Term Loans or as agreed upon among the Borrower and the lender or lenders providing such Incremental Term Facility and reasonably acceptable to the Administrative Agent, (B) the terms of any Incremental Term Loans made as an increase to any Class of Term Loans shall be on the same terms to those applicable to the then-existing Term Loans of the applicable Class, (C) except as otherwise expressly provided in this Section 2.22, the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date), must be substantially consistent with those applicable to the Initial Revolving Facility or as agreed upon among the Borrower and the lender or lenders providing such Incremental Revolving Facility and reasonably acceptable to the Administrative Agent, and (D) the terms of any Incremental Revolving Facility that is an increase to the Revolving Credit Commitments shall be on the same terms to those applicable to the then-existing Revolving Credit Commitments,
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility that is pari passu with the Tranche B-2 Term Loans or the 2021 Incremental Term Loans (other than any such Incremental Term Facility that constitutes MFN Adjustment Excluded Indebtedness), the Effective Yield applicable thereto (as determined on the date of initial incurrence thereof) may not be more than 0.50% higher than the Effective Yield applicable to the Tranche B-2 Term Loans or the 2021 Incremental Term Loans (as determined on such date), as applicable, unless the Applicable Rate with respect to the Tranche B-2 Term Loans or the 2021 Incremental Term Loans, as applicable, is adjusted to be equal to such Effective Yield with respect to such Incremental Facility, minus, 0.50%; provided that solely with respect to 2021 Incremental Term Loans, this clause (v) shall only apply through and including the date that is 12 months after the Third Amendment Effective Date,
(vi) (A) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date,
(vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche of Term Loans (without giving effect to any prepayments thereof),
(A) any Incremental Facility must rank pari passu with or junior to the Term Facility in right of payment and may rank pari passu with or junior to the Term Facility with respect to security or may be unsecured (and to the extent the relevant Incremental Facility is subordinated to the Term Facility in right of payment or security and documented in a separate agreement (it being agreed that any Incremental Facility that is subordinated to the Term Facility in right of payment or security shall be documented in a separate agreement, unless such Incremental Facility is a pari passu “last out” facility), it shall be subject to an Acceptable Intercreditor Agreement), (B) to the extent that any portion of any Incremental Facility is incurred in reliance on any portion of the Growth Available Incremental Amount, such portion of such Incremental Facility shall not be secured on a greater priority basis than that by which the Indebtedness repaid and underlying such portion of the Growth Available Incremental Amount so utilized was secured (if at all) and (C) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(A) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment (including the Tranche B-2 Term Loans and the 2021 Incremental Term Loans) shall be made on a pro rata basis with such existing Term Loans, except, that the Borrower and the lender or lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis) (and, for the avoidance of doubt, any Incremental Term Loans that are not pari passu in right of payment and security shall not be entitled to share in any such prepayment) and (B) any prepayment or reduction of Revolving Credit Commitments with respect to Incremental Revolving Facilities that are pari passu in right of payment and security with any then-existing Revolving Facility that require ratable prepayment or commitment reduction, as applicable (including the Initial Revolving Credit Commitments), shall be made on a pro rata basis with such existing Revolving Facility, except, that the Borrower and the lender or lenders providing the relevant Incremental Revolving Facility shall be permitted, in their sole discretion, to elect to prepay, apply or receive, as applicable, any such prepayment or commitment reduction on a less than pro rata basis (but not on a greater than pro rata basis) (and, for the avoidance of doubt, any Incremental Revolving Facilities that are not pari passu in right of payment and security shall not be entitled to share in any such prepayment or commitment reduction),
(x) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists or would exist immediately after giving effect to such Incremental Facility and, except as otherwise agreed by the lender or lenders providing the relevant Incremental Facility (and in the case of any qualification thereinIncremental Revolving Facility increasing the Revolving Credit Commitments, the Required Revolving Lenders) in all respects on connection with an acquisition or other Investment permitted under this Agreement, no other Event of Default shall exist or would exist immediately after giving effect to such respective dates;Incremental Facility,
(vixi) the proceeds of any Incremental Revolving Facility may be used by the Borrower and the Restricted Subsidiaries for working capital, capital and other general corporate purposes (including the financing of acquisitions and other Investments and Restricted Payments) and any other purpose use not prohibited by this Agreement; , and
(viixii) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding LIBO RateTerm SOFR Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender Eligible Assignee (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Swingline Lender and any each Issuing Bank Bank) shall have consented a right to consent (such consent not to be unreasonably withheld withheld, conditioned or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other customary documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received be entitled to receive all fees (if any) required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower each Loan Party approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(x) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Swingline Loans and Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in US Swingline Loans and Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei).; and
(fii) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agreeestablishes Revolving Credit Commitments of a new Class, then (A) the availability thereof borrowing and repayment (except for (x) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Revolving Facility and (z) any repayment made in connection with a permanent repayment and termination of the Revolving Credit Commitments under any Revolving Facility (subject to clause (C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving Facility shall be subject made on a pro rata basis with all other Revolving Facilities, (B) all Letters of Credit shall be participated on a pro rata basis or less than pro rata basis by all Revolving Lenders and (C) any permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, except that the Borrower shall be permitted to customary “SunGard” permanently repay Revolving Loans and reduce or “certain funds” conditionality.
(h) This Section 2.22 shall supersede terminate Revolving Credit Commitments under any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Revolving Facility on a greater than pro
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of term loans of any existing Class by requesting new commitments to provide such term loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of Revolving Credit Commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments any Incremental Commitment shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not substantially consistent with those applicable to the 2024 Refinancing Revolving Facility, must be reasonably acceptable to the Administrative Agent (unless its rights and interests it being agreed that any terms contained in such Incremental Facility (x) which are adversely affected in any material respectapplicable only after the then-existing Latest Revolving Credit Maturity Date, (y) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable that are more favorable to the Revolving lenders or the agent of such Incremental Facility than those contained in the Loan Documents and are then conformed (other than with respect or added) to any upfront feesthe Loan Documents for the benefit of the Lenders or the Administrative Agent, original issue discount or similar feesas applicable, pursuant to the applicable Incremental Facility Amendment and/or (z) if such Incremental Facility is an Incremental Term Facility, notwithstanding anything herein to the contrary, relating to optional and mandatory prepayments that are customary and “market” for similarly situated borrowers at the time of incurrence, as determined by the Borrower in its reasonable discretion shall, in each case, be deemed satisfactory to the Administrative Agent);,
(v) except the Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility,
(vi) no Incremental Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date,
(vii) no Incremental Facility shall have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of any then-existing Revolving Loans,
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as otherwise agreed determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) above, to the relevant Incremental Revolving Facility extent applicable, any fees payable in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited Incremental Facility shall be determined by the terms Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with or junior to any then-existing tranche of this term loans or Revolving Loans, as applicable, in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured, it shall be subject to an Acceptable Intercreditor Agreement, ) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi) [reserved],
(xii) (A) no Event of Default shall exist immediately prior to or after giving effect to the incurrence or implementation of such Incremental Revolving Facility; provided that notwithstanding the foregoing, in the case of any Incremental Facility incurred or implemented in connection with any acquisition, Investment or irrevocable payment or redemption of Indebtedness, the condition set forth in this clause (A) shall require only that no Event of Default under Section 7.01(a), (f) or (g) exist immediately prior to giving effect to such Incremental Facility and (B) the representations and warranties condition set forth in Section 4.02(b) hereof shall be satisfied after giving effect to the incurrence or implementation of the Loan Parties relevant Incremental Facility; provided that notwithstanding the foregoing, in the case of any Incremental Facility incurred or implemented in connection with any acquisition or similar Investment, the condition set forth in this Agreement clause (B) shall require only the making and the other Loan Documents shall be true and correct in all material respects on and as accuracy of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after Specified Representations before giving effect to any qualification thereinsuch acquisition or Investment; provided further that this clause (xii) shall be subject to Section 1.10(a) and (b) in all respects on such respective dates;respects, and
(vixiii) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments, Restricted Debt Payments and related fees and expenses) and any other purpose use not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Incremental Lender”); provided that the Administrative Agent and (and, in the case of any Incremental Revolving Facility, any Issuing Bank Bank) shall have consented a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Incremental Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Incremental Lender.
(c) Each Lender or Additional Revolving Incremental Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Incremental Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) Questionnaire and such other documents as it shall reasonably and customarily require from such Additional Revolving Incremental Lender, (iii) the Administrative Agent and Lenders shall have received all received, on behalf of the Incremental Lenders, the amount of any fees required payable to be paid the Incremental Lenders in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request, the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition conditions set forth in clause (a)(va)(xii) above has have been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such LenderRevolving ▇▇▇▇▇▇’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei); and
(ii) if such Incremental Revolving Facility establishes Revolving Credit Commitments of a new Class, then (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Revolving Facility and (z) repayments made in connection with a permanent repayment and termination of the Revolving Credit Commitments under any Revolving Facility (subject to clause (C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, (B) all Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders and (C) any permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made with respect to such Incremental Revolving Facility on a pro rata basis or less than pro rata basis with all other Revolving Facilities, or, to the extent such Incremental Revolving Credit Commitments are terminated in full and refinanced or replaced with a Replacement Revolving Facility or Replacement Debt, a greater than pro rata basis; provided, that subclauses (A) and (C) of this clause (e)(ii) shall only apply to any Incremental Revolving Facility that is pari passu with the 2024 Refinancing Revolving Facility in right of payment and security.
(f) On the date of effectiveness of any Incremental Revolving Facility, the Letter of Credit Sublimit shall increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent and the relevant Issuing Banks, as applicable; it being understood and agreed that the Borrower and any Lender providing any Incremental Revolving Facility may agree that such Lender will provide a portion of the Letter of Credit Sublimit in excess of its Applicable Percentage thereof.
(g) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.22, including, solely with respect to any Incremental Term Facility, the ability to include provisions applicable solely to such Incremental Term Facility, so long as such provisions are not otherwise prohibited by, or amendments are effectuated pursuant to the terms of, this Agreement.
(gh) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, but subject to Section 2.22(a)(xii), if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionalityconditionality (including the making and accuracy of the Specified Representations before giving effect to such acquisition or Investment).
(hi) This Section 2.22 shall supersede any provision in Section Sections 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Sources: First Lien Credit Agreement (Shift4 Payments, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any time, time or from time to time on one or more occasions deliver a after the Effective Date, by written request notice delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy i) add one or more additional Classes of such request to each term loans or additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of same Class as any existing Class of term loans (an “Incremental Term Facility”) and/or increase the principal amount of the Term Loans by requesting new term loan commitments to be added to such Loans (an “Incremental Term Increase”, and together with any Incremental Term Facility, the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (any each such increase, an “Incremental Revolving FacilityCommitment Increase”) and/or (iii) one or more additional tranches of revolving commitments (the “Additional Revolving Commitments” and, together with the Incremental Term Loans and the loans thereunderIncremental Revolving Commitment Increase, the “Incremental Facilities”); provided that, at the time that any such Incremental Term Loan, Incremental Revolving Loans”Commitment Increase or Additional Revolving Commitment is made or effected, no Event of Default (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Acquisition, no Event of Default pursuant to Sections 7.01(a), (b), (h) in an or (i)) shall have occurred and be continuing. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $2,000,000 and integral multiples of $500,000 in excess thereof if such Incremental Facilities are denominated in dollars (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $2,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(i) The Incremental Term Loans (a) shall rank equal in right of payment with the Term Loans, shall be secured only by the Collateral securing the Secured Obligations, shall be secured by the Collateral on a pari passu basis with the Credit Facilities, and shall not be guaranteed by any Person which is not a Loan Party, (b) shall not mature earlier than the Term Maturity Date with respect to the Initial Term Loans (except in the case of bridge loans the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the Term Maturity Date respect to the Initial Term Loans), (c) shall not have a shorter Weighted Average Life to Maturity (except in the case of bridge loans the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the Term Maturity Date applicable to the then-existing Term Loans) than the remaining Term Loans, (d) shall have a maturity date (subject to clause (b)), an amortization schedule (subject to clause (c)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the Additional Term Lenders thereunder; provided that in the event that the Effective Yield for any Incremental Term Loans that are secured by the Collateral on a pari passu basis with the Secured Obligations and incurred on or prior to the date that is eighteen months after the Effective Date is greater than the Effective Yield for any Class of Term Loans by more than the MFN Cushion, then the Effective Yield for each such Class of Term Loans shall be increased to the extent necessary so that the Effective Yield for each such Class of Term Loans are equal to the Effective Yield for the Incremental Term Loans minus the MFN Cushion (provided that the “LIBOR floor” applicable to the outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Cap; Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding) (any required adjustment to the Effective Yield described in this clause (d) shall be referred to herein as an “MFN Adjustment”), (e) other than with respect to Credit Agreement Refinancing Indebtedness shall not participate on a greater than pro rata basis than the Initial Term Loans with respect to any mandatory prepayment (other than any scheduled amortization payment) provided that:
(i) no that the Borrower and the lenders providing the relevant Incremental Revolving Commitment may Term Loans shall be less than $5,000,000,permitted, in
(ii) except Any Incremental Revolving Commitment Increase shall be treated the same as separately agreed from time the Class of Revolving Commitments being increased (including with respect to time between the Lead maturity date thereof and scheduled or mandatory prepayment or commitment reductions) and shall be considered to be part of the Class of Revolving Loans being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(iii) Any Additional Revolving Commitments (a) shall rank equal or subordinate in right of payment with the initial Revolving Loans, shall be secured only by the Collateral securing the Secured Obligations, shall be secured by the Collateral on a pari passu basis with the Credit Facilities, and shall not be guaranteed by any Person that is not a Loan Party, (b) shall not mature earlier than the Revolving Maturity Date with respect to the Initial Revolving Loans, (c) shall not require any scheduled or mandatory prepayment or commitment reduction prior to the Revolving Maturity Date, (d) other than with respect to Credit Agreement Refinancing Indebtedness shall not participate on a greater than pro rata basis than the initial Revolving Commitments with respect to any mandatory prepayment or commitment reduction, provided that the Borrower and the lenders providing the relevant Additional Revolving Commitments shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment or commitment reduction on a less than pro rata basis and (e) may otherwise have terms and conditions different from those of the Revolving Loans (including currency denomination); provided that except with respect to matters contemplated by clauses (b), (c),(d) and (e) above, the covenants, events of default and guarantees of any such Additional Revolving Commitments shall not be materially more restrictive to the Borrower, when taken as a whole, than the terms of the initial Revolving Commitments, unless (1) the Lenders with initial Revolving Commitments also receive the benefit of such more restrictive terms (together with, at the election of the Borrower, any applicable “equity cure” provisions with respect to any financial maintenance covenant) (it being understood to the extent that any covenant is added for the benefit of any such Additional Revolving Commitments, no consent shall be required from the Administrative Agent or any Lender to the extent that such covenant is also added for the benefit of any corresponding initial Revolving Commitments), (2) any such provisions apply after the Latest Maturity Date at the time of incurrence of such Incremental Facility, (3) such terms
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the relevant Incremental Facility.
(d) Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall shall, unless it agrees, be obligated to provide any Incremental Revolving CommitmentFacilities) or by any Additional Lender; provided that (i) the Administrative Agent shall have consent rights (not to be unreasonably withheld, and the determination conditioned or delayed) with respect to provide such commitments shall be within the sole and absolute discretion of such Additional Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if anysuch consent would be required pursuant to Section 9.04 for an assignment of Loans or Commitments, as a applicable, to such Additional Lender providing all or part of and (ii) solely with respect to any Incremental Revolving Commitment Increase or Incremental any Additional Revolving Loan)Commitment, the Administrative Agent Issuing Banks shall have consent rights (unless its rights and interests are adversely affected in any material respectnot to be unreasonably withheld, conditioned or delayed) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront feessuch Additional Lender, original issue discount if such consent would be required pursuant to Section 9.04 for an assignment of Revolving Loans or similar fees);
(v) except Revolving Commitments, as otherwise agreed by the lenders providing the relevant applicable, to such Additional Lender. Incremental Term Loans and loans under Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions Commitment Increases or Additional Revolving Commitments shall be a “Loan” for all purposes of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds consent of any Incremental Revolving Facility may be used for working capitalother Lenders, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the establishment relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such new tranches or sub-tranches or conditions as the maintaining of such single tranche, in each case on terms consistent with parties thereto shall agree and as required by this Section 2.222.20. The Borrower will use the proceeds of the Incremental Facilities for working capital and other general corporate purposes of the Borrower and its Subsidiaries, including capital expenditures, Permitted Acquisitions and other Investments, Restricted Payments and the refinancing of Indebtedness, and any other use not prohibited by the Loan Documents.
(ge) Notwithstanding anything to the contrary in contrary, this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.20 shall supersede any provision provisions in Section 2.18 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on by notice to the Administrative Agent, request (i) an increase in the principal amount of Term Loan Commitments of any then existing Class of Term Loans (a “Term Loan Increase”) or the establishment of a new Class of Term Loan Commitments (collectively with any Term Loan Increase, the “Incremental Term Commitments”; and the Term Loans made in respect of Incremental Term Commitments, the “Incremental Term Loans”) and/or (ii) one or more occasions deliver increases in the principal amount of the then existing Revolving Commitments (each, a written request to “Revolving Commitment Increase” and, collectively with any Incremental Term Commitments, the Administrative Agent (whereupon “Incremental Commitments”; and the Administrative Agent shall promptly deliver a copy loan facilities established hereunder in respect of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments (any such increaseCommitments, each, an “Incremental Revolving Facility” ”), in each case, in Dollars and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:Cap (assuming for such purposes that the full amount of any Revolving Commitment Increase being established at such time was fully drawn).
(b) On the applicable effective date of any Incremental Amendment (including through any Term Loan Increase or Revolving Commitment Increase, as applicable), (i) each Incremental Term Lender shall become a Lender hereunder with respect to the Incremental Term Commitment of the applicable Class and the Incremental Term Loans made pursuant thereto and (ii) each Incremental Revolving Lender shall become a Lender hereunder with respect to the Revolving Commitment Increase of the applicable Class and the Revolving Loans made pursuant thereto.
(c) No Lender (or any successor thereto) shall have any obligation, express or implied, to provide any portion of any requested Incremental Commitment, and any decision by a Lender to provide any portion of any such Incremental Commitment shall be made in its sole discretion independently from any other Lender. Except as otherwise set forth in this Section 2.23, only the consent of the Incremental Lenders, and not the consent of any existing Lender, shall be required to establish an Incremental Commitment. In respect of any requested Incremental Facility, the Borrower may accept some or all of the Incremental Commitments offered by existing Lenders (the “Increasing Lenders”) or may designate new lenders (subject in each case (including, for the avoidance of doubt, with respect to Increasing Lenders) to the approval of the Administrative Agent, the Swingline Lender and each Issuing Bank, in each case, only to the extent that such consent would be required under Section 10.4(b)(iii) if the Loans or Commitments, as applicable, established by such Incremental Amendment had been obtained by such Incremental Lender by way of assignment) as additional Lenders hereunder in accordance with this Section (such new Lenders, the “Additional Lenders”, and together with the Increasing Lenders, each, an “Incremental Revolving Lender” or “Incremental Term Lender”, as applicable, and, collectively, the “Incremental Lenders”).
(d) The effectiveness of any Incremental Commitments and Incremental Facility shall be subject only to the satisfaction of each of the following conditions, together with any other conditions set forth in the applicable instrument of joinder or amendment to this Agreement (an “Incremental Amendment”):
(i) no immediately before and after giving effect to any proposed Incremental Revolving Commitment may be less than $5,000,000,
Facility (ii) except as separately agreed from time to time between determined, in the Lead Borrower and any Lender, no Lender shall be obligated to provide case of any Incremental Revolving CommitmentFacility that is to be used to fund a Limited Condition Transaction, and as of the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender LCT Test Date (other than in its capacitythe determination of whether any Specified Event of Default shall have occurred and be continuing, if any, which shall be determined as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loanthe date such Limited Condition Transaction is consummated)), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default (or, in the case of any Incremental Facility that is to be used to fund a Permitted Acquisition or other Investment permitted by this Agreement, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing, no Specified Event of Default) shall exist immediately prior to or after giving effect to such Incremental Revolving Facility have occurred and be continuing;
(Bii) the representations and warranties of in the Loan Parties set forth Documents will be true and correct in this Agreement all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) immediately before and after giving effect to any proposed Incremental Facility (except to the other Loan Documents extent that any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such (except for representations and warranties had been made on that are already qualified by materiality, which representations and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall warranties will be true and correct in all material respects respects) as of such date or for such periodearlier date); provided, further, provided that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds case of any Incremental Revolving Facility may that is to be used for working capital, general corporate purposes and any to fund a Permitted Acquisition or other purpose not prohibited Investment permitted by this Agreement, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing, the condition set forth in this clause (ⅱ) may be satisfied with respect only to the Specified Representations and customary “specified acquisition agreement representations”; and
(viiiii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver delivery to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereoffollowing documents:
(A) certifying and attaching a an executed copy of the resolutions adopted an Incremental Amendment executed by the governing body of the applicable Borrower approving or consenting to and each Incremental Lender and setting forth such Incremental Revolving Facility or Commitments of such Incremental Revolving Loans, andLenders;
(B) to the extent applicablereasonably required by the Administrative Agent after consultation with the Borrower, legal opinions and authorizing resolutions, in each case, with respect to such Incremental Facility and consistent with those delivered on the Closing Date, other than changes to such legal opinions resulting from a change in law or change in fact;
(C) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the condition set forth conditions in clause clauses (a)(vd)(ⅰ) above and (d)(ⅱ) of this Section has been satisfied; and
(D) to the extent requested by any Incremental Lender, executed promissory notes evidencing such Incremental Facility, issued by the Borrower in accordance with Section 2.10. Upon the effectiveness of any Incremental Facility, the Loans, Commitments and Pro Rata Share of each Lender will be adjusted, as applicable, to give effect to such Incremental Facility, and Schedule I shall automatically be deemed amended accordingly.
(e) The terms, provisions and documentation of Incremental Term Loans and Incremental Term Commitments or Revolving Commitment Increases, as the case may be, of any Class shall, except as otherwise set forth below, be as agreed between the Borrower and the applicable Incremental Lenders providing such Incremental Commitments. In any event:
(i) Each Lender With respect to Revolving Commitment Increases and Term Loan Increases:
(A) (1) any Revolving Commitment Increase provided pursuant to this Section shall be on terms and conditions (including pricing, maturity and amortization, but excluding upfront fees) and pursuant to documentation, in each case, identical to those applicable to the Revolving Commitments of such Class outstanding immediately prior to such incurrence, and such Revolving Commitment Increase shall constitute an increase in the aggregate principal amount of the applicable Class and (2) any Term Loan Increase provided pursuant to this Section shall be on terms and conditions (including pricing and maturity but excluding upfront fees) and pursuant to documentation, in each case, identical to those applicable to the Term Loans of such Class outstanding immediately prior to such incurrence, and such Term Loan Increase shall constitute an increase in the aggregate principal amount of the applicable Class;
(B) obligations in respect of any Revolving Commitment Increase or Term Loan Increase (1) shall constitute Obligations, (2) shall have the same Guarantees as the Obligations and (3) shall rank pari passu in right of payment and security with the First Lien Facilities;
(C) no Revolving Commitment Increase or Term Loan Increase shall be secured by a Lien on any assets or property that are not Collateral and no Revolving Commitment Increase or Term Loan Increase shall be Guaranteed by any Person that is not a Guarantor.
(ii) With respect to Incremental Term Loans other than Term Loan Increases:
(A) shall (w) not be Guaranteed by any Person that is not a Guarantor, (x) not be secured by a Lien on any assets or property that are not Collateral, (y) rank pari passu in right of payment with the existing First Lien Facilities hereunder, and (z) be secured by ▇▇▇▇▇ on the Collateral that are pari passu with the Liens of the Administrative Agent securing the existing First Lien Facilities hereunder;
(B) the scheduled final maturity date of the Incremental Term Loans will automatically be no earlier than the Term Facility Maturity Date for the Initial Term Loans; provided that this clause (B) shall not apply to any Incremental Term Loan constituting Permitted Short Term Debt or incurred pursuant to the Inside Maturity Exception;
(C) the Weighted Average Life to Maturity of the Incremental Term Loans will be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans; provided that this clause shall not apply to any Incremental Term Loan constituting Permitted Short Term Debt or incurred pursuant to the Inside Maturity Exception;
(D) the Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) with the Initial Term Loans in any mandatory repayments of Term Loans hereunder, it being agreed (A) any repayment of such Incremental Term Loans at maturity shall be permitted and without further act (B) any greater than pro rata repayment of such Incremental Term Loans shall be deemed permitted with the proceeds of a refinancing thereof that is permitted by this Agreement;
(E) the interest rate, fees, original issue discount and other economic terms applicable to Incremental Term Loans will be as determined by the Borrower and the Incremental Lenders providing such Incremental Term Loans; provided, however, that with respect to any Incremental Term Loans that (a) are incurred on or prior to the date that is twenty-four (24) months after the Closing Date, (b) are syndicated term “B” loans, and (c) have assigned a scheduled maturity date prior to the date that is two years after the Term Facility Maturity Date of the Initial Term Loans, the Yield applicable to such Incremental Term Loans shall not be greater than the applicable Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans plus 50 basis points per annum unless the Yield with respect to the Initial Term Loans is increased so as to cause the then applicable Yield under this Agreement on the Initial Term Loans to equal the Yield then applicable to the Incremental Term Loans minus 50 basis points (the “MFN Protection”); and
(F) the covenants and other terms applicable to any such Incremental Term Loans shall be substantially identical to, or, taken as a whole, no more favorable to the applicable Incremental Lenders than, those applicable to the Initial Term Loans, as reasonably determined in good faith by a Responsible Officer of the Borrower (except (i) applicable only to periods after the Term Facility Maturity Date of the Initial Term Loans at the time of incurrence and (ii) any term or condition to the extent such term or condition is also added for the benefit of the Lenders under the Initial Term Loans and the Revolving Facility (it being understood and agreed that such more favorable terms or conditions may be added to the Loan Documents at the direction of the Borrower, notwithstanding any restriction in Section 10.2 to the contrary, and the Lenders hereby authorize the Administrative Agent to enter into, together with Parent and the Borrower, any amendment to this Agreement reasonably satisfactory in form to the Administrative Agent in order to effect such addition)); provided that this clause (F) will not apply to (1) terms addressed in the preceding clauses (A) through (E), (2) interest rate, rate floors, fees, funding discounts and other pricing or economic terms, (3) redemption, prepayment or other premiums, and (4) optional prepayment or redemption terms.
(f) Upon the effective date of any Revolving Commitment Increase established pursuant to this Section 2.23, (a) with respect to the applicable Class of Revolving Commitments being increased pursuant to such Revolving Commitment Increase, each of the Revolving Lenders shall assign to each relevant of the Incremental Revolving LenderLenders, and each relevant of the Incremental Revolving Lender will automatically Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof and without further act be deemed to have assumed a portion in the Agreed Currency thereof, such interests in the Revolving Loans (ratably as among each Borrowing of such Lender’s participations hereunder Revolving Loans) outstanding on such effective date as shall be necessary in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such order that, after giving effect to each deemed assignment all such assignments and assumption of participationspurchases, all of the Lenders’ (including each such Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving LenderLenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Revolving Commitment Increase to the Revolving Commitments, (b) there shall be an automatic adjustment to the participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be Loans held on a pro rata basis on the basis of by each Revolving Lender so that each such Revolving Lender shares ratably in such participations in accordance with their respective Commitments of the applicable class Pro Rata Share or other allocable share provided in this Agreement (after giving effect to any increase in the establishment of each Revolving Commitment pursuant to Section 2.22Increase), (c) each Revolving Commitment Increase shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (iid) the existing Lenders of each Incremental Revolving Lender shall become a Lender with respect to the applicable Class shall assign of Revolving Loans to certain other Lenders of such Class (including Commitments and all matters relating thereto. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed hereby agree that the minimum borrowing, pro rata borrowing assignment and pro rata payment prepayment requirements contained elsewhere in of this Agreement shall not apply apply, and no amounts shall be payable by the Borrower pursuant to Section 2.19 with respect, to the transactions effected pursuant to this clause (e)the immediately preceding sentence.
(fg) The Incremental Term Loans made under each Term Loan Increase shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Section 2.3 and on the date of the making of such Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.2, such Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the applicable Class of Term Loans on a pro rata basis, so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans of such Class after giving effect to the addition contemplated above.
(h) Each of the parties hereto hereby irrevocably authorize agrees that this Agreement and the other Loan Documents may be amended pursuant to an Incremental Amendment, without the consent of any Person other than the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed), the Borrower and the Persons providing the applicable Incremental Facilities, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Incremental Facilities established pursuant thereto and (ii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with Borrower, to effect the establishment provisions of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document2.23, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing hereby expressly authorize the Administrative Agent to enter into any such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) Amendment. This Section 2.22 2.23(h) shall supersede any provision provisions in Section 2.18 or 9.02 10.2 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, at any timetime after the Eighth Amendment Closing Date, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Facility Agreement, (i) add one or more new tranches of term facilities (each new tranche, a “New Incremental Term Facility”) and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (each increase, an “Incremental Increase Facility”; together with any New Incremental Term Facility, “Incremental Term Facilities” and any loans made pursuant to an Incremental Term Facilities, “Incremental Term Loans”) and/or (ii) add one or more new tranches of Incremental Revolving Facility Amendment to Commitments (each new tranche, a “New Incremental Revolving Facility”) and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such each increase, an a “Revolving Commitment Increase”; together with any New Incremental Revolving Facility, “Incremental Revolving Facilities” and, together with any Incremental Term Facility” , “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) unless the Administrative Agent otherwise agrees, no Incremental Revolving Commitment Facility may be less than $5,000,0001,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) except as otherwise permitted herein (including as provided in clause (xii) below), (A) the terms of each any Incremental Revolving Term Facility will (other than any terms which are applicable only after the Latest Term Loan Maturity Date) must be substantially identical to consistent with those applicable to any then-existing Class of Term Loans or otherwise, at the option of the Borrower, either (I) reflect, in the good faith determination of the Borrower, market terms and conditions (taken as a whole) at the time of incurrence of such Incremental Term Facility or (II) be reasonably acceptable to the Administrative Agent and (B) the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date) must be substantially consistent with those applicable to any then-existing Revolving Facility or otherwise, at the option of the Borrower, either (I) reflect, in the good faith determination of the Borrower, market terms and conditions (taken as a whole) at the time of incurrence of such Incremental Revolving Facility or (II) be reasonably acceptable to the Administrative Agent (it being understood that to the extent that any financial maintenance covenant or other term is added for the benefit of (A) any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other term is also added for the benefit of all Classes of Loans or (B) any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other term is also added for the benefit of each then-existing Revolving Facility),
(v) the Effective Yield (and the components thereof, including interest rate margins, rate floors, fees, premiums and funding discounts), currency types and denominations and any “MFN” terms or prepayment premiums applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that (A) in the case of any Incremental Term Facility that is secured by the Collateral on a pari passu basis with the Secured Obligations and incurred prior to the date that is 6 months following the Eighth Amendment Closing Date (other than, at the option of the Borrower, any Incremental Term Facility that, (I) is incurred to finance a Permitted Acquisition, Investment or similar transaction and/or (II) do not fall within clause (I) above in an aggregate amount not exceeding the greater of $430,000,000 and 100.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period), the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate with respect to the Initial Term Loans is adjusted to the extent necessary to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50%, and (B) the Applicable Rate for any Incremental Increase Facility shall be (x) the Applicable Rate for the Class being increased in connection therewith or (y) higher than the Applicable Rate for the Class being increased as long as the Applicable Rate for the Class being increased is automatically increased as and to the extent necessary to eliminate the deficiency,
(vi) the maturity date of any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that except with respect to customary prepayment terms in connection with customary escrow arrangements, (A) the final maturity date with respect to any upfront feesIncremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Initial Revolving Credit Maturity Date; provided that, original issue discount or similar feesat the option of the Borrower, (A) Incremental Facilities constituting Customary Bridge Loans and (B) Incremental Facilities incurred in the form of Term A Loans, in the case of each of clauses (A) and (B);, may be incurred without regard to this clause (vi),
(vvii) the amortization schedule for any Incremental Term Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that except as otherwise agreed with respect to customary prepayment terms in connection with customary escrow arrangements, the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any prepayments thereof); provided that, at the option of the Borrower, (A) Incremental Term Facilities constituting Customary Bridge Loans and (B) Incremental Facilities in the form of Term A Loans, in the case of each of clauses (A) and (B), may be incurred without regard to this clause (vii),
(viii) (A) any Incremental Term Facility or Incremental Revolving Facility shall be secured by a Lien on the Collateral that is pari passu with the Lien securing the Secured Obligations and (B) no Incremental Facility shall be (x) guaranteed by any Person other than a Loan Guarantor or (y) secured by any assets other than the Collateral,
(ix) any mandatory prepayment (other than any scheduled amortization payment) of Incremental Term Loans shall be made on a pro rata basis with all then-existing Term Loans, except that the Borrower and the lenders providing the relevant Incremental Revolving Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such mandatory prepayment on a less than pro rata basis (but not on a greater than pro rata basis),
(x) no Event of Default then exists (except in the case of the incurrence or provision of any Incremental Facility in connection with any acquisitiona Permitted Acquisition, investments and repayments, repurchases and redemptions of indebtedness Investment or similar transaction not prohibited by the terms of this AgreementAgreement or any Limited Condition Transaction, (A) in which case, no Specified Event of Default shall then exists or would exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialitythereto),” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixi) the proceeds of any Incremental Revolving Facility and/or any Incremental Term Facility may be used by the Borrower and its subsidiaries for working capital, capital and other general corporate purposes purposes, including the financing of Permitted Acquisitions and other Investments and any other purpose use not prohibited by this Agreement; and,
(viixii) at no time (A) any Incremental Increase Facility shall there be more on the same terms (including maturity date and interest rates) and pursuant to the same documentation (other than three separate the relevant Incremental Facility Agreement) applicable to such Class of Term Loans, and (B) any Revolving Commitment Increase (x) shall be on the same terms (including maturity date and interest rates (except (i) if required to consummate such Revolving Commitment Increase, any increase in interest rates, rate floors and undrawn fees that is provided to all Lenders for such Class of Revolving Credit Commitments), but excluding upfront fees or similar fees) and pursuant to the same documentation (other than the relevant Incremental Facility Agreement) applicable to such Class of Revolving Credit Commitments and (y) shall not require any scheduled amortization or mandatory commitment reduction prior to the Maturity Dates in effect Date with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment Class of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving LoansCredit Commitments, and
(Bxiii) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the extent applicable, certifying that the condition contrary set forth in clause Section 2.08 or 2.13, such Incremental Term Loans shall be added to (a)(v) above has been satisfied.
(i) Each Lender and constitute a part of, be of the applicable Class immediately prior to such increase will automatically and without further act be deemed to same Type as and, at the election of the Borrower, have assigned to the same Interest Period as) each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion Borrowing of outstanding Term Loans of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held Class on a pro rata basis (based on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders relative sizes of such Class (including the Lenders providing the relevant Incremental Revolving FacilityBorrowings), and so that each Term Lender providing such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, Term Loans will participate proportionately in each case to the extent necessary so that all then-outstanding Borrowing of the Lenders Term Loans of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22)Class; it being understood and agreed acknowledged 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 application of this clause (e).
a)(xiii) may result in new Incremental Term Loans having Interest Periods (f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as duration of which may be necessary in order less than one month) that begin during an Interest Period then applicable to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving outstanding Adjusted Term SOFR Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent relevant Class and that end on the Lead Borrower in connection with the establishment last day of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22Interest Period.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Sources: First Lien Credit Agreement (Waystar Holding Corp.)
Incremental Credit Extensions. (a) The Lead (i) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request make available to each of the Lenders) pursuant ), request to an Incremental Revolving Facility Amendment to increase effect one or more increases in the aggregate amount of Commitments of any existing Class of Revolving Commitments (any each such increase, an a “Revolving Commitment Increase”) from Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) no Default or Event of Default shall have occurred and be continuing or shall result therefrom, (B) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clause (A) above, together with reasonably detailed calculations demonstrating compliance with clause (y) of the definition of “Incremental Cap” below to the extent applicable and (C) each Revolving Facility” Commitment Increase shall be on the same terms (including interest rate margins and maturity) governing the loans thereunderRevolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, “Incremental at the time of effectiveness of any given Revolving Loans”Commitment Increase, the sum of (i) in an the aggregate principal amount of the Revolving Commitment Increases entered into after the Effective Date and (ii) the aggregate principal amount of all Term Commitment Increases incurred after the Effective Date shall not to exceed the Incremental Cap; sum of (x) $163,000,000 and (y) up to an additional amount such that at the time of such incurrence and after giving effect thereto on a Pro Forma Basis, the Consolidated First Lien Leverage Ratio is less than or equal to 2.75 to 1.00 (provided that:
that (i) no Incremental for purposes of calculating the Consolidated First Lien Leverage Ratio, any Revolving Commitment Increase being entered into shall be assumed to be fully drawn and (ii) the proceeds of any such Revolving Commitment Increase or Term Commitment Increase being implemented and any such substantially concurrent Revolving Commitment Increases and Term Commitment Increases shall not be netted from Consolidated First Lien Debt) (the “Incremental Cap”). Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $5,000,000,
(ii) except as separately agreed from time to time between 5,000,000 if such amount represents all the Lead Borrower and any Lenderremaining availability under the Incremental Cap. For the avoidance of doubt, no Lender shall be obligated required to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any timeIncrease.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Effective Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (i) pursuant one or more additional Series of term loans under this Section 2.26 to be made available to the Borrower or an Incremental Revolving Facility Amendment to increase in the aggregate amount of Commitments of the Initial Term Loans, any existing Class of Commitments Incremental Term Loans or any Other Term Loans (any such new additional tranche or series or increase, an “Incremental Revolving Term Facility” ”, and the any loans thereundermade pursuant to an Incremental Term Facility, “Incremental Revolving Term Loans”) and (ii) (x) one or more increases in an aggregate principal the amount not of the Revolving Credit Commitments under this Section 2.26 (each such increase, a “Revolving Commitment Increase”) and (y) one or more additional Series of incremental revolving credit commitments under this Section 2.26 to exceed be made available to the Borrower (the “Incremental CapRevolving Credit Commitments”, with any Incremental Revolving Credit Commitments, any Revolving Commitment Increases and any Incremental Term Facility being collectively called a “Credit Increase”); provided provided, that:
(i) no Incremental Revolving Commitment may each Credit Increase shall be in an aggregate principal amount that is not less than $5,000,000,5,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is acceptable to the Administrative Agent);
(ii) the aggregate outstanding principal amount of the Credit Increases under this Section 2.26, together with the aggregate outstanding principal amount of all Permitted First Priority Incremental Equivalent Debt, Permitted Junior Priority Incremental Equivalent Debt and Permitted Unsecured Incremental Equivalent Debt, shall not exceed the Maximum Incremental Amount;
(iii) each Incremental Term Loan shall:
(A) rank pari passu or (except with respect to an increase to any existing Class of Term Loans permitted hereunder) junior in right of payment and of security with the Initial Term Loans and any other then existing Class of Term Loans that are pari passu in right of payment and security therewith (so long as, in the case of any such Incremental Term Loans ranking junior in right of payment or security, such Incremental Term Loans shall be subject to an applicable Intercreditor Agreement),
(B) other than with respect to the Inside Maturity Amount, any Customary Bridge Loan or any Customary Term A Loan, (1) not mature earlier than the Latest Maturity Date then in effect and (2) have a Weighted Average Life to Maturity not shorter than the Weighted Average Life to Maturity of any other outstanding Class of Term Loans (provided, that, for the purpose of calculating the Weighted Average Life to Maturity of any Incremental Term Loan ranking pari passu in right of security to any such Class of Term Loans, amortization of such Incremental Term Loan shall be disregarded if (and only if) it does not exceed 0.25% per fiscal quarter), and
(C) be treated in the same manner as each existing Class of Term Loans with which such Incremental Term Loan ranks pari passu in right of payment and of security for purposes of Section 2.13(f), unless the relevant Lender in respect of such Incremental Term Loan elects lesser treatment;
(D) except as separately otherwise permitted herein (including with respect to margin, MFN protection, pricing, maturity and fees), have representation and warranty, covenant and default terms that, if not substantially consistent with those applicable to any then-existing Term Loans, are (1) taken as a whole, not materially more favorable (as determined by the Borrower in good faith at the time the definitive documentation for such Incremental Term Loan is finalized) to the lenders or investors providing such Incremental Term Loan than the corresponding terms of the Loan Documents or (2) otherwise reasonably satisfactory to the Administrative Agent (it being agreed from that any terms contained in such Incremental Term Loan
(A) which are applicable only after the then-existing Latest Maturity Date applicable to the Term Loans, (B) constitute then-current market terms for the applicable type of Indebtedness (as determined by the Borrower in good faith at the time the definitive documentation for such Incremental Term Loan is finalized), including any financial maintenance covenant applicable to time between any Customary Term A Loan (which shall constitute a “then-current market term” for Customary Term A Loans) or (C) that are more favorable to the Lead lenders or the agent of such Indebtedness than the corresponding terms of the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.08(c)(ii) shall be deemed satisfactory to the Administrative Agent), and
(E) bear interest and be subject to fees as agreed by the Borrower and the applicable Lenders; provided, in the case of any such Incremental Term Loan that constitutes MFN Indebtedness, the interest rate margin applicable thereto (excluding any credit spread or similar adjustment) will not be more than 0.75% per annum higher than the interest rate margin in respect of the Initial Term Loans unless the Applicable Percentage with respect to the Initial Term Loans is adjusted such that the interest rate margin applicable to any Initial Term Loans at such time is not more than 0.75% per annum less than the interest rate margin with respect to such Indebtedness; it being understood and agreed that whether, and to what extent, the MFN Provision applies shall be determined as of the date on which such Incremental Term Loan is implemented under this Agreement (this clause (E), the “MFN Provision”); and
(iv) each Incremental Revolving Credit Commitment (and related Incremental Revolving Loans) shall:
(A) rank pari passu in right of payment and of security with the Initial Revolving Loans; provided, however, the Borrower may elect to structure any such Incremental Revolving Loans ranking junior in right of security to the Loans and Commitments of the Borrower hereunder under a separate credit facility, so long as such other credit facility otherwise complies with the provisions of this Section 2.26
(B) not mature (or require commitment reductions) earlier than the Latest Maturity Date with respect to Revolving Credit Commitments then in effect,
(C) be treated in the same manner as the Initial Revolving Loans for purposes of Section 2.13(f), unless the relevant Lender in respect of such Incremental Revolving Credit Commitments elects lesser treatment;
(D) except as otherwise permitted herein (including with respect to margin, MFN protection, pricing, maturity and fees), have representation and warranty, covenant and default terms that, if not substantially consistent with those applicable to any then-existing Revolving Credit Commitments, are (1) taken as a whole, not materially more favorable (as determined by the Borrower in good faith at the time the documentation relating to such Revolving Credit Commitment is finalized) to the lenders or investors providing such Incremental Revolving Credit Commitments than the corresponding terms of the Loan Documents or (2) otherwise reasonably satisfactory to the Administrative Agent (it being agreed that any terms contained in such Incremental Revolving Credit Commitments (A) which are applicable only after the then-existing Latest Maturity Date applicable to the Revolving Credit Commitments, (B) any covenants or provisions which are then-current market terms for the applicable type of Indebtedness (as determined by the Borrower in good faith at the time the documentation relating to such Revolving Credit Commitment is finalized), including any financial maintenance covenant applicable to any Customary Term A Loan (which shall constitute a “then-current market term” for Customary Term A Loans) or (C) that are more favorable to the lenders or the agent of such Indebtedness than the corresponding terms of the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Revolving Credit Lenders or the Administrative Agent, as applicable, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.08(c)(ii) shall be deemed satisfactory to the Administrative Agent), and
(E) bear interest and be subject to fees as agreed by the Borrower and the applicable Lenders;
(v) each notice from the Borrower pursuant to this Section 2.26 shall set forth the requested amount and proposed terms of the relevant Credit Increases and
(vi) Incremental Term Loans may be made, and Revolving Commitment Increases and Incremental Revolving Credit Commitments may be provided, by any existing Lender with Loans and/or Commitments under the relevant Class or by any Additional Lender.
(i) Commitments in respect of Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, no an increase in such Lender’s applicable Revolving Credit Commitment, as the case may be) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent.
(ii) 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 opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.26; it being understood that the Incremental Amendment with respect to any Incremental Term Facility may, without the consent of any Lender (other than any Lender providing such Incremental Term Loans) or the Administrative Agent, include such amendments to this Agreement as may be necessary, appropriate or advisable as reasonably determined by the Administrative Agent and the Borrower to (A) make the applicable Incremental Term Loans “fungible” with the relevant existing Class of Term Loans (including by modifying the amortization schedule and/or extending the time period during which any prepayment premium applies) and/or (B) in the case of any Credit Increase in the form of a Customary Term A Loan, provide that the financial covenant applicable to such Customary Term A Loan applies for the benefit of the lenders of such Customary Term A Loan but not any other Lender or group of Lenders hereunder.
(iii) The Borrower may use the proceeds of any Credit Increase for any purpose not prohibited by this Agreement (it being understood that Section 5.08 imposes limitations on the use of proceeds of certain Credit Increases as specified therein).
(iv) No Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than Credit Increases unless it so agrees in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);sole discretion.
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of On the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Term Loans that will be added to any Class of Initial Term Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility Term Loans or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Other Term Loans, and
(B) and notwithstanding anything to the extent applicable, certifying that the condition contrary set forth in clause Section 2.03 or Section 2.06, such Incremental Term Loans shall, at the election of the Borrower and the Administrative Agent, be added to (a)(vand constitute a part of) above has been satisfiedeach borrowing of outstanding Initial Term Loans, other Incremental Term Loans or Other Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans, other Incremental Term Loans or Other Term Loans, as applicable, of the same type with the same Interest Period of the respective Class.
(ivi) Each Upon each increase in the Revolving Credit Commitments of a given Class pursuant to a Revolving Commitment Increase as provided in this Section 2.26, each Revolving Credit Lender with a Revolving Credit Commitment of the applicable such affected Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of such Revolving Commitment Increase for such Class (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such LenderRevolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Loans representing a utilization of such Class of Revolving Credit Commitments such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving LenderI) participations hereunder in US Letters of Credit and/or Canadian the relevant Letters of Credit and (II) participations hereunder in the relevant Swingline Loans, as applicable, shall be Loans held on by each Revolving Credit Lender with a pro rata basis on Revolving Credit Commitment of such affected Class (including each such Revolving Commitment Increase Lender) will equal the basis of their respective Commitments percentage of the applicable class aggregate Revolving Credit Commitments under such affected Class of all relevant Revolving Credit Lenders represented by such Revolving Credit ▇▇▇▇▇▇’s relevant Revolving Credit Commitment.
(after giving effect to any increase in the Commitment pursuant to Section 2.22) and (iivii) the existing Revolving Credit Lenders of the applicable Class shall assign Revolving Credit Loans to certain other Revolving Credit Lenders of such Class (including the Revolving Credit Lenders providing the relevant Incremental Revolving FacilityCommitment), and such other Revolving Credit Lenders (including the Revolving Credit Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Credit Loans, in each case to the extent necessary so that all of the Revolving Credit Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Credit Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment of such Class pursuant to this Section 2.222.26); it being understood and agreed 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 (vii).
(viii) Upon each addition of an Incremental Revolving Credit Commitment pursuant to this Section 2.26 if, on the date of such addition, there is any Revolving Credit Exposure then outstanding, then participations hereunder in the relevant Letters of Credit and Swingline Loans hereunder shall be adjusted, in each case such that all Revolving Credit Lenders, as the case may be, participate in each Revolving Credit Borrowing, L/C Exposure and Swingline Exposure, as the case may be, in accordance with their applicable Pro Rata Percentages (with any such prepayment to be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.17).
(c) No Credit Increase shall (i) be guaranteed by any Person which is not a Loan Party or (ii) be secured by any property or assets other than the Collateral.
(d) This Section 2.26 shall supersede any provisions in Sections 2.18, 2.19 and 9.08 to the contrary.
(e)) Each Lender or Additional Lender providing a portion of any Credit Increase shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Credit Increase. On the effective date of such Credit Increase, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(f) The Lenders hereby irrevocably authorize such amendments As a condition precedent to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches effectiveness of any Credit Increase or sub-tranches or to maintain a single tranche in respect the making of Revolving any Incremental Term Loans or commitments increased or extended pursuant to this Section 2.22 and authorize Incremental Revolving Loans, (A) upon its reasonable request, the Administrative Agent and shall have received customary written opinions of counsel to the Lead Borrower to enter into Borrower, as well as such technical reaffirmation agreements, supplements and/or amendments as may be necessary or appropriate in the reasonable opinion of it shall reasonably require and (B) the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single trancheshall have received, in from each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan DocumentAdditional Lender, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Admi
Appears in 1 contract
Sources: Credit Agreement (Dayforce, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of term loans of any existing Class by requesting new commitments to provide such term loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of Revolving Credit Commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the theany loans thereunderthereundermade pursuant to an Incremental Revolving Facility, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments any Incremental Commitment shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Revolving Facility, if not substantially consistent with those applicable to the 2024 Refinancing Revolving Facility or the terms of any Incremental Term Facility, if not substantially consistent with those applicable to the Amendment No. 2 Term Facility, must, in each case, be reasonably acceptable to the Administrative Agent (unless its rights and interests it being agreed that any terms contained in such Incremental Facility (x) which are adversely affected in any material respectapplicable only after the then-existing Latest Revolving Credit Maturity Date, (y) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable that are more favorable to the Revolving lenders or the agent of such Incremental Facility than those contained in the Loan Documents and are then conformed (other than with respect or added) to any upfront feesthe Loan Documents for the benefit of the Lenders or the Administrative Agent, original issue discount or similar feesas applicable, pursuant to the applicable Incremental Facility Amendment and/or (z) if such Incremental Facility is an Incremental Term Facility, notwithstanding anything herein to the contrary, relating to optional and mandatory prepayments that are customary and “market” for similarly situated borrowers at the time of incurrence, as determined by the Borrower in its reasonable discretion shall, in each case, be deemed satisfactory to the Administrative Agent);,
(v) except the Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility,; provided that, in the case of any broadly-syndicated floating rate Dollar denominated term loan “B” Incremental Term Facility that is pari passu with the Amendment No. 2 Term Loans in right of payment and security, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Amendment No. 2 Term Loans unless the Applicable Rate with respect to the Amendment No. 2 Term Loans is adjusted such that the Effective Yield on the Amendment No. 2 Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Term Facility; provided, further, that the immediately preceding proviso shall not apply to (i) Incremental Term Facilities incurred more than twelve months after the Amendment No. 2 Closing Date, (ii) Incremental Term Facilities having an aggregate principal amount not exceeding the greater of $462,500,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, (iii) Customary Bridge Loans and (iv) Incremental Term Facilities incurred to refinance debt of the Borrower and its Restricted Subsidiaries (the immediately preceding proviso, as modified by this proviso, the “MFN Provision”),
(vi) (x) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date, and (y) other than Customary Bridge Loans, no Incremental Term Facility may have a final maturity date earlier than the Latest Term Loan Maturity Date,
(vii) (x) no Incremental Revolving Facility shall have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of any then-existing Revolving Loans, and (y) other than Customary Bridge Loans, no Incremental Term Facility shall have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of any then-existing Term Loans,
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise agreed have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) above, to the relevant Incremental Revolving Facility extent applicable, any fees payable in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited Incremental Facility shall be determined by the terms Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with or junior to any then-existing tranche of this term loans or Revolving Loans, as applicable, in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured, it shall be subject to an Acceptable Intercreditor Agreement, ) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi) [reserved],
(xii) (A) no Event of Default shall exist immediately prior to or after giving effect to the incurrence or implementation of such Incremental Revolving Facility; provided that notwithstanding the foregoing, in the case of any Incremental Facility incurred or implemented in connection with any acquisition, Investment or irrevocable payment or redemption of Indebtedness, the condition set forth in this clause (A) shall require only that no Event of Default under Section 7.01(a), (f) or (g) exist immediately prior to giving effect to such Incremental Facility and (B) the representations and warranties condition set forth in Section 4.02(b) hereof shall be satisfied after giving effect to the incurrence or implementation of the Loan Parties relevant Incremental Facility; provided that notwithstanding the foregoing, in the case of any Incremental Facility incurred or implemented in connection with any acquisition or similar Investment, the condition set forth in this Agreement clause (B) shall require only the making and the other Loan Documents shall be true and correct in all material respects on and as accuracy of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after Specified Representations before giving effect to any qualification thereinsuch acquisition or Investment; provided further that this clause (xii) shall be subject to Section 1.10(a) and (b) in all respects on such respective dates;respects, and
(vixiii) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments, Restricted Debt Payments and related fees and expenses) and any other purpose use not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Incremental Lender”); provided that the Administrative Agent and (and, in the case of any Incremental Revolving Facility, any Issuing Bank Bank) shall have consented a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Incremental Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Incremental Lender.
(c) Each Lender or Additional Revolving Incremental Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Incremental Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) Questionnaire and such other documents as it shall reasonably and customarily require from such Additional Revolving Incremental Lender, (iii) the Administrative Agent and Lenders shall have received all received, on behalf of the Incremental Lenders, the amount of any fees required payable to be paid the Incremental Lenders in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request, the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition conditions set forth in clause (a)(va)(xii) above has have been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (ix) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (iiiiy) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei); and
(ii) if such Incremental Revolving Facility establishes Revolving Credit Commitments of a new Class, then (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Revolving Facility and (z) repayments made in connection with a permanent repayment and termination of the Revolving Credit Commitments under any Revolving Facility (subject to clause (C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, (B) all Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders and (C) any permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made with respect to such Incremental Revolving Facility on a pro rata basis or less than pro rata basis with all other Revolving Facilities, or, to the extent such Incremental Revolving Credit Commitments are terminated in full and refinanced or replaced with a Replacement Revolving Facility or Replacement Debt, a greater than pro rata basis; provided, that subclauses (A) and (C) of this clause (e)(ii) shall only apply to any Incremental Revolving Facility that is pari passu with the 2024 Refinancing Revolving Facility in right of payment and security.
(f) On the date of effectiveness of any Incremental Revolving Facility, the Letter of Credit Sublimit shall increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent and the relevant Issuing Banks, as applicable; it being understood and agreed that the Borrower and any Lender providing any Incremental Revolving Facility may agree that such Lender will provide a portion of the Letter of Credit Sublimit in excess of its Applicable Percentage thereof.
(g) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.22, including, solely with respect to any Incremental Term Facility, the ability to include provisions applicable solely to such Incremental Term Facility, so long as such provisions are not otherwise prohibited by, or amendments are effectuated pursuant to the terms of, this Agreement.
(gh) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, but subject to Section 2.22(a)(xii), if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionalityconditionality (including the making and accuracy of the Specified Representations before giving effect to such acquisition or Investment).
(hi) This Section 2.22 shall supersede any provision in Section Sections 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Sources: Second Amended and Restated First Lien Credit Agreement (Shift4 Payments, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of Incremental Revolving Commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments any Incremental Commitment shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent (unless its rights it being agreed that any terms contained in such Incremental Term Facility (x) which are applicable only after the then-existing Latest Term Loan Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and interests are adversely affected in any material respectthen conformed (or added) to the Loan Documents for the benefit of the Term Lenders or any other agent or arranger;
the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall be deemed satisfactory to the Administrative Agent) and (ivB) the terms of each any Incremental Revolving Facility, if not substantially consistent with those applicable to any then-existing Revolving Facility must be reasonably acceptable to the Administrative Agent (it being agreed that any terms contained in such Incremental Revolving Facility will (x) which are applicable only after the then-existing Latest Revolving Credit Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Revolving Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Revolving Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall be substantially identical deemed satisfactory to those the Administrative Agent),
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that the Effective Yield applicable to any Incremental Term Facility which is pari passu with the Initial Term Loans in right of payment and with respect to security may not be more than 0.50% higher than the Effective Yield applicable to the Revolving Facility Initial Term Loans unless the Applicable Rate (other and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility; provided, further, that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or LIBO Rate floor applicable to such Initial Term Loan,
(vi) (A) the final maturity date with respect to any upfront feesIncremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date,
(vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof),
(viii) subject to clauses (vi) and (vii) above, original issue discount or similar fees);any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) except as otherwise agreed by above, to the lenders providing the relevant Incremental Revolving Facility extent applicable, any fees payable in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited Incremental Facility shall be determined by the terms of this Agreement, Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with or junior to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment and/or security (it being understood that any Incremental Facility that is junior to the Initial Term Loans with respect to security shall be pari passu with, or junior to, the Second Lien Facility) or may be unsecured (and to the extent the relevant Incremental Facility is secured, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(xi) any Incremental Term Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi), in each case, to the extent provided in such Sections,
(xii) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such periodFacility; provided, furtherthat notwithstanding the foregoing, that in the case of any representation Incremental Facility incurred in connection with any acquisition, Investment or warranty that is qualified as irrevocable repayment or redemption of Indebtedness, no Event of Default under Section 7.01(a), (f) or (g) shall exist immediately prior to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;Incremental Facility,
(vixiii) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments for the purpose of repaying, prepaying or redeeming the Seller Financing and related fees and expenses) and any other purpose use not prohibited by this Agreement; , and
(viixiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding LIBO Rate Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Incremental Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Swingline Lender and any Issuing Bank Bank) shall have consented a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Incremental Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Incremental Lender; provided, further, that any Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Incremental Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Incremental Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) Questionnaire and such other documents as it shall reasonably and customarily require from such Additional Revolving Incremental Lender, (iii) the Administrative Agent and Lenders shall have received all received, on behalf of the Incremental Lenders, the amount of any fees required payable to be paid the Incremental Lenders in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(xii) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and (B) participations hereunder in Swingline Loans, as applicable, Loans shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei); and
(ii) if such Incremental Revolving Facility establishes Revolving Credit Commitments of a new Class, then (A) the borrowing and repayment (except for (x) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Revolving Facility and (z) repayments made in connection with a permanent repayment and termination of the Revolving Credit Commitments under any Revolving Facility (subject to clause (C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, (B) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders and (C) any permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made with respect to such Incremental Revolving Facility on a pro rata basis or less than pro rata basis with all other Revolving Facilities, or, to the extent such Incremental Revolving Commitments are terminated in full and refinanced or replaced with a Replacement Revolving Facility or Replacement Debt a greater than pro rata basis.
(f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure and/or Swingline Loans, as applicable, permitted hereunder shall increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent and the relevant Issuing Bank and/or the Swingline Lender, as applicable.
(g) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case on terms consistent with this Section 2.22.
(gh) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.condi
Appears in 1 contract
Sources: First Lien Credit Agreement (ATI Physical Therapy, Inc.)
Incremental Credit Extensions. (a) 2.22.1. The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and and, the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) 2.22.1.1. no Incremental Revolving Commitment may be less than $5,000,000,5.0 million;
(ii) 2.22.1.2. except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) 2.22.1.3. no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) 2.22.1.4. the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) 2.22.1.5. except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) 2.22.1.6. the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any transaction or other purpose not prohibited by this Agreement; and
(vii) 2.22.1. 7. at no time shall there be more than three (3) separate Maturity Dates in effect with respect to the Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) 2.22.2. Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) 2.22.3. Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) 2.22.4. As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) 2.22.4.1.1. certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) 2.22.4.1.2. to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender▇▇▇▇▇▇’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) 2.22.6. The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such a single tranche, in each case on terms consistent with this Section 2.22.
(g) 2.22.7. Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or similar Investment and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality, including in a manner consistent with Section 4.01.
(h) 2.22.8. This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.111.10.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead (i) At any time and from time to time after the Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of make available such request notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of the Revolving Commitments hereunder) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansFacilities”) in an aggregate principal amount not to exceed the Incremental Capfrom Additional Revolving Lenders; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from that at the time to time between of each such request and upon the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms effectiveness of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementAmendment, (A) no Event of Default shall exist immediately prior to have occurred and be continuing or after giving effect to shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants recomputed as of the last day of the most-recently ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the date last day of any fiscal quarter of the initial Borrowing under Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the relevant period), (D) such Incremental Revolving Facility may be secured on a pari passu basis with the same effect Loans, (E) the interest rate margins, rate floors, fees, premiums and maturity applicable to any Incremental Revolving Facility shall be determined by the Borrower and the lenders thereunder, provided that no Incremental Revolving Facility shall mature prior to the Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Revolving Maturity Date, (F) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Revolving Facilities, (G) any Incremental Revolving Facility may be provided in any currency as though such representations mutually agreed among the Administrative Agent, the Borrower and warranties had been made on the Additional Revolving Lenders and as (H) in the case of an increase in the Revolving Commitments hereunder, the maturity date of such dateincrease in the Revolving Commitment shall be the Revolving Maturity Date, such increase in the Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement; provided that to the extent that any representation such terms and warranty specifically refers documentation are not consistent with this Agreement (except to a given date the extent permitted by clause (E) or period(G) above), it they shall be true and correct in all material respects as of such date or for such periodreasonably satisfactory to the Administrative Agent; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required to act as “issuing bank” under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such without its written consent. Each Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on in a pro rata basis on the basis minimum principal amount of their respective Commitments $10,000,000 and integral multiples of the applicable class (after giving effect to any increase $1,000,000 in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of excess thereof; provided that such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as amount may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize less than $10,000,000 if such amount represents all the Administrative Agent and remaining availability under the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22Incremental Cap.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, Company may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request additional term loans (the commitments thereof, the “Incremental Term Commitments”, the loans thereunder, the “Incremental Term Loans” and a Lender making such loans, an “Incremental Term Lender”) pursuant to an the creation and/or one or more subsequent increases of revolving commitments (“Incremental Revolving Facility Commitments”), provided that (x) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to increase below, no Default or Event of Default shall exist at the time that any such Incremental Term Loan or Incremental Revolving Commitment is made (and after giving effect thereto) no Default or Event of Default shall exist and (y) the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Term Loans or Incremental Revolving Facility” Commitments incurred during the term of this Agreement shall not exceed the Maximum Pari Passu Facilities Amount. Except as permitted in clauses (ii) and the loans thereunder(iii) of Section 2.18(b) and Section 2.18(d), “all terms and documentation with respect to Incremental Term Loans or Incremental Revolving Loans”Commitments that (i) are materially more restrictive on MS Holdco and its Restricted Subsidiaries (when taken as a whole) than those with respect to any other Loans under the Facility or (ii) relate to provisions of a mechanical (including with respect to any Incremental Revolving Commitments, delayed draw facilities and currency mechanics) or administrative nature, shall be reasonably satisfactory to the Administrative Agent.
(b) Each incurrence of Incremental Term Loans or Incremental Revolving Commitments shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than $10,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,
10,000,000 if such amount represents all remaining availability under the Maximum Pari Passu Facilities Amount). The Incremental Term Loans or Incremental Revolving Commitments (i) shall rank pari passu in right of payment and in right of security with the Term Loans, (ii) shall not mature earlier than the Latest Maturity Date and, in the case of Incremental Term Loans, shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Term Loans (except by virtue of amortization of or prepayment of the Term Loans prior to such date of determination), and (iii) except as separately agreed set forth above, shall be treated substantially the same as the Term Loans (in each case, including with respect to mandatory and voluntary prepayments, except that (x) such Incremental Term Loans may, to the extent provided in the applicable Incremental Amendment, participate on a less than pro rata basis in any mandatory prepayment pursuant to Section 2.6 and (y) the Borrower may prepay any Class of Term Loans at its option pursuant to Section 2.5); provided that the interest rates, fees and amortization schedule (subject to clause (ii) above) applicable to the Incremental Term Loans or Incremental Revolving Commitments shall be determined by the Company and the lenders thereof; provided further that, if the initial yield on such Incremental Term Loans or Incremental Revolving Commitments (as determined by the Yield Calculation Principles) exceeds the sum of (1) the Applicable Margin then in effect for Eurodollar Loans, and (2) the upfront fees with respect to the Term Loans paid on the Closing Date divided by four, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Incremental Yield Differential, effective upon the making of the Incremental Term Loans or Incremental Revolving Commitments. Each notice from time the Company pursuant to time between this Section 2.18 shall set forth the Lead Borrower requested amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Commitments.
(c) Incremental Term Loans or Incremental Revolving Commitments may be made by any Lender, existing Lender or any Additional Lender (provided that no Lender shall be obligated to provide make a portion of any Incremental Term Loan or Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), in each case on terms permitted in this Section 2.18 and otherwise on terms reasonably acceptable to the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront feesAgent, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving such Lender’s provision of making such Incremental Term Loans or Incremental Revolving Commitments if such consent would be required under Section 9.05(b10.6(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion Lender. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitment Commitments shall execute and deliver become Commitments under this Agreement pursuant to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment (an “Incremental Amendment”) to any this Agreement and, as appropriate, the other Loan Document) as may be reasonably required Documents, executed by MS Holdco, the Administrative Agent Company, each Lender agreeing to evidence and effectuate provide such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, if any, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to Lender, if any, and the effectiveness Administrative Agent. The Incremental Amendment may, without the consent of any Incremental Revolving Facility or the making of any Incremental Revolving Loansother Lenders, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with Company, to effect the establishment provisions of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of Section. The effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof Amendment shall be subject to customary the satisfaction on the date thereof (each, an “SunGard” Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2 (it being understood that all references to the date of such extension of credit or “certain funds” conditionalitysimilar language in such Section 4.2(b) and Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Company will use the proceeds of the Incremental Term Loans or loans made pursuant to any Incremental Revolving Commitment for any purpose not prohibited by this Agreement.
(hd) Incremental Term Loans or Incremental Revolving Commitments may be denominated in Dollars or any currency reasonably acceptable to the Administrative Agent and the Additional Lenders providing such Facility.
(e) This Section 2.22 2.18 shall supersede any provision provisions in Section 2.18 2.11 or 9.02 10.1 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Parent Borrower may, may at any timetime or from time to time after the A&R Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (a) pursuant to an Incremental Revolving Facility Amendment to increase one or more increases in the aggregate amount of Commitments of any existing Class of the Revolving Credit Commitments (any each such increase, an a “Revolving Commitment Increase”); provided that upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist. Each Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) Commitment Increase shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than an amount of $100,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than an amount of $5,000,000,
(ii) except as separately agreed from time to time between 100,000,000 if such amount represents all remaining availability under the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties limit set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the date Revolving Commitment Increases shall not exceed $750,000,000 (such amount, the “Incremental Amount”). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the initial Borrowing under such Incremental relevant Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Commitment Increases. Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments Commitment Increases may be provided by any existing LenderLender (it being understood that no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); , provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving such Lender’s provision of Incremental or Additional Lender’s providing such Revolving Commitments Commitment Increases if such consent would be required under Section 9.05(b10.07(b) for an assignment of Loans or Revolving Loans Credit Commitments, as applicable, to such Additional Revolving Lender.
(c) Each Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, each Lender providing a portion agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. Any Revolving Commitment Increase shall be on the same terms (including, without limitation, with respect to pricing) and treated the same as the existing Facility (including, without limitation, with respect to maturity date thereof) and shall be considered to be part of the Facility, provided that the upfront fees applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof. The Incremental Amendment may, without the consent of any Incremental Revolving Commitment shall execute other Lenders or Loan Parties, effect such amendments to this Agreement and deliver to the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower Parent Borrower, 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 4.03 (it being understood that all references to “the date of such documentation (including the relevant Incremental Revolving Facility Amendment Credit Extension” or an amendment similar language in such Section 4.03 shall be deemed to any other Loan Document) as may be reasonably required by the Administrative Agent refer to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”Amendment) and such other documents conditions as it the parties thereto shall reasonably and customarily require from agree. The Parent Borrower shall use the proceeds of the Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that to the extent the proceeds of Revolving Commitment Increases are being used to refinance Retained Existing Notes, such Additional Revolving Lender, (iii) refinancing occurs no earlier than the Administrative Agent and Lenders shall have received all fees required to be paid in respect final maturity date of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
Retained Existing Notes. Upon each increase in (A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting Revolving Credit Commitments pursuant to such Incremental this Section 2.14, (x) each Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the existing Lenders percentage of the applicable Class shall assign aggregate Revolving Loans to certain other Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such Class increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (including reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)the immediately preceding sentence.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(hb) This Section 2.22 2.14 shall supersede any provision provisions in Section 2.18 2.13 or 9.02 10.01 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Sources: Credit Agreement (Clear Channel Communications Inc)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request one or more additional tranches of Tranche A Term Loans (the “Incremental Tranche A Term Loans”), Tranche B Term Loans (the “Incremental Tranche B Term Loans” and, together with the Incremental Tranche A Term Loans, the “Incremental Term Loans”) pursuant to an or revolving credit commitments (the “Incremental Revolving Facility Amendment to increase Credit Loans”) or increases in the aggregate amount of Commitments of any existing Class of the Revolving Credit Commitments (any each such increaseincrease a “Revolving Commitment Increase”; together with the Incremental Revolving Credit Loans, the “Incremental Revolving Facilities”) under the Facilities (each, an “Incremental Revolving Facility” and the loans thereunder”), “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made or Incremental Revolving Commitment may be less than $5,000,000,
Facility becomes effective (and after giving effect thereto) no Default or Event of Default shall exist and (ii) the Borrower shall be in compliance with the covenant set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Facility and the last day of the most recent Test Period. The aggregate amount of the Incremental Facilities shall not exceed the greater of (i) $250,000,000 and (ii) an amount such that, after giving pro forma effect to the Incremental Facility, the First Lien Leverage Ratio shall not exceed 3.75:1.00 (which, solely for purposes of determining the First Lien Leverage Ratio pursuant to this clause (ii), any Indebtedness incurred or proposed to be incurred under such Incremental Facility shall be deemed to be first-lien Indebtedness). The Incremental Facilities (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) (x) in the case of a Revolving Commitment Increase, shall mature on the Maturity Date of the Revolving Credit Facility and (y) shall not mature earlier than the Maturity Date of (1) the Tranche A Term Facility, in the case of Incremental Tranche A Term Loans, and (2) the Tranche B Term Facility, in the case of Incremental Tranche B Term Loans, (c) shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of (1) the Tranche A Term Facility, in the case of Incremental Tranche A Term Loans, and (2) the Tranche B Term Facility, in the case of Incremental Tranche B Term Loans, (d) except as separately agreed from time to time between set forth above, shall be treated substantially the Lead Borrower same as (and in any Lenderevent, no Lender shall be obligated to provide any more favorably than) (1) the Revolving Credit Facility, in the case of Incremental Revolving CommitmentCredit Loans, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv2) the terms Tranche A Term Loans, in the case of Incremental Tranche A Term Loans and (3) the Tranche B Term Loans, in the case of Incremental Tranche B Term Loans (in each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (case, other than with respect to pricing, amortization and maturity), and (e) will accrue interest at rates determined by the Borrower and the lenders providing such Incremental Facility, which rates may be higher or lower than the rates applicable to (1) the Revolving Credit Facility, in the case of Incremental Revolving Credit Loans, (2) the Tranche A Term Loans, in the case of Incremental Tranche A Term Loans and (3) the Tranche B Term Loans, in the case of Incremental Tranche B Term Loans; provided that with respect to any Incremental Term Loans incurred after the Closing Date and until the second anniversary after the Closing Date, if the sum of the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront fees, or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans (with such upfront or similar fees);
fees or original issue discount being equated to interest based on an assumed four-year life to maturity) but excluding customary arrangement or commitment fees paid to the arrangers thereof) and any “LIBOR floor” (vsuch sum, the “Incremental Rate”) except as otherwise agreed applicable to such Indebtedness relating to the Incremental Term Loans (1) exceeds, in the case of Incremental Tranche A Term Loans, the sum of the Applicable Rate and Adjusted LIBOR (such sum, the “Tranche A Rate”) relating to the Tranche A Term Loans by more than 0.50%, the lenders providing Applicable Rate relating to the Tranche A Term Loans shall be adjusted such that the Tranche A Rate is equal to the Incremental Rate relating to the applicable Incremental Tranche A Term Loans minus 0.50%, and (2) exceeds, in the case of Incremental Tranche B Term Loans, the sum of the Applicable Rate and Adjusted LIBOR (such sum, the “Tranche B Rate”) relating to the Tranche B Term Loans by more than 0.50%, the Applicable Rate relating to the Tranche B Term Loans shall be adjusted such that the Tranche B Rate is equal to the Incremental Rate relating to the applicable Incremental Tranche B Term Loans minus 0.50%. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to Term Loans or after giving effect to such Incremental Revolving Facility Facility. Incremental Term Loans and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing LenderLender (and each existing Tranche A Term Lender will have the right, but not an obligation, to provide a portion of any Incremental Tranche A Term Loan, each existing Tranche B Term Lender will have the right, but not an obligation, to provide a portion of any Incremental Tranche B Term Loan, and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Incremental Revolving Facility, in each case, on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other lender (bank or other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) financial institution (any such other lender bank or other financial institution being called an “Additional Revolving Lender”); , provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayedwithheld) to the relevant Additional Revolving such Lender’s provision of or Additional Lender’s making such Incremental Term Loans and Incremental Revolving Commitments Facility if such consent would be required under Section 9.05(b10.07(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion Lender. Commitments in respect of any Incremental Term Loans and Incremental Revolving Commitment Facilities shall execute and deliver become Commitments under this Agreement pursuant to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment (an “Incremental Amendment”) to any this Agreement and, as appropriate, the other Loan Document) as may be reasonably required Documents, executed by Holdings, the Administrative Agent Borrower, each Lender agreeing to evidence and effectuate provide such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, if any, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to Lender, if any, and the effectiveness Administrative Agent. The Incremental Amendment may, without the consent of any Incremental Revolving Facility or the making of any Incremental Revolving Loansother Lenders, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with Borrower, to effect the establishment provisions of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of Section. The effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof Amendment shall be subject to customary the satisfaction on the date thereof (each, an “SunGardIncremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or “certain funds” conditionality.
(h) This similar language in such Section 2.22 4.02 shall supersede any provision in Section 2.18 or 9.02 be deemed to refer to the contrary effective date of such Incremental Amendment) and shall, such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans and the Incremental Revolving Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to extent applicable, be subject in all respects to Section 1.11provide any Incremental Term Loans or Incremental Revolving Facilities unless it so agrees.
Appears in 1 contract
Sources: First Amendment and Restatement Agreement (Team Health Holdings Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new tranches of term facilities or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) or (ii) add one or more new tranches of Incremental Revolving Commitments or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time subject to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving LoanSection 2.22(i), on the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to date that such Incremental Revolving Facility and (B) becomes effective, the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the such date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or periodan earlier date, it shall be true and correct in all material respects as of such date or for such periodearlier date; provided, further, that any representation or warranty representations and warranties that is are qualified as to by “materiality,” material”, “Material Adverse Effectmaterial adverse effect” or a similar language term shall be true and correct in all respects;
(ii) except as otherwise agreed by the Borrower and any Lender in the relevant Incremental Facility Amendment, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(A) except as otherwise expressly provided in this Section 2.22, the terms of any Incremental Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Term Loans) must be substantially consistent with those applicable to the Tranche B-2 Term Loans and 2021 Incremental Term Loans or as agreed upon among the Borrower and the lender or lenders providing such Incremental Term Facility and reasonably acceptable to the Administrative Agent, (B) the terms of any Incremental Term Loans made as an increase to any Class of Term Loans shall be on the same terms to those applicable to the then-existing Term Loans of the applicable Class, (C) except as otherwise expressly provided in this Section 2.22, the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date), must be substantially consistent with those applicable to the Initial2024 Replacement Revolving Facility or as agreed upon among the Borrower and the lender or lenders providing such Incremental Revolving Facility and reasonably acceptable to the Administrative Agent, and (D) the terms of any Incremental Revolving Facility that is an increase to the Revolving Credit Commitments shall be on the same terms to those applicable to the then-existing Revolving Credit Commitments,
(v) the Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility that is pari passu with the Tranche B-2 Term Loans or the 2021 Incremental Term Loans (other than any such Incremental Term Facility that constitutes MFN Adjustment Excluded Indebtedness), the Effective Yield applicable thereto (as determined on the date of initial incurrence thereof) may not be more than 0.50% higher than the Effective Yield applicable to the Tranche B-2 Term Loans or the 2021 Incremental Term Loans (as determined on such date), as applicable, unless the Applicable Rate with respect to the Tranche B-2 Term Loans or the 2021 Incremental Term Loans, as applicable, is adjusted to be equal to such Effective Yield with respect to such Incremental Facility, minus, 0.50%; provided that solely with respect to 2021 Incremental Term Loans, this clause (v) shall only apply through and including the date that is 12 months after the Third Amendment Effective Date,
(A) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date,
(vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche of Term Loans (without giving effect to any prepayments thereof),
(A) any Incremental Facility must rank pari passu with or junior to the Term Facility in right of payment and may rank pari passu with or junior to the Term Facility with respect to security or may be unsecured (and to the extent the relevant Incremental Facility is subordinated to the Term Facility in right of payment or security and documented in a separate agreement (it being agreed that any Incremental Facility that is subordinated to the Term Facility in right of payment or security shall be documented in a separate agreement, unless such Incremental Facility is a pari passu “last out” facility), it shall be subject to an Acceptable Intercreditor Agreement), (B) to the extent that any portion of any Incremental Facility is incurred in reliance on any portion of the Growth Available Incremental Amount, such portion of such Incremental Facility shall not be secured on a greater priority basis than that by which the Indebtedness repaid and underlying such portion of the Growth Available Incremental Amount so utilized was secured (if at all) and (C) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(A) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment (including the Tranche B-2 Term Loans and the 2021 Incremental Term Loans) shall be made on a pro rata basis with such existing Term Loans, except, that the Borrower and the lender or lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis) (and, for the avoidance of doubt, any Incremental Term Loans that are not pari passu in right of payment and security shall not be entitled to share in any such prepayment) and (B) any prepayment or reduction of Revolving Credit Commitments with respect to Incremental Revolving Facilities that are pari passu in right of payment and security with any then-existing Revolving Facility that require ratable prepayment or commitment reduction, as applicable (including the Initial2024 Replacement Revolving Credit Commitments), shall be made on a pro rata basis with such existing Revolving Facility, except, that the Borrower and the lender or lenders providing the relevant Incremental Revolving Facility shall be permitted, in their sole discretion, to elect to prepay, apply or receive, as applicable, any such prepayment or commitment reduction on a less than pro rata basis (but not on a greater than pro rata basis) (and, for the avoidance of doubt, any Incremental Revolving Facilities that are not pari passu in right of payment and security shall not be entitled to share in any such prepayment or commitment reduction),
(x) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists or would exist immediately after giving effect to such Incremental Facility and, except as otherwise agreed by the lender or lenders providing the relevant Incremental Facility (and in the case of any qualification thereinIncremental Revolving Facility increasing the Revolving Credit Commitments, the Required Revolving Lenders) in all respects on connection with an acquisition or other Investment permitted under this Agreement, no other Event of Default shall exist or would exist immediately after giving effect to such respective dates;Incremental Facility,
(vixi) the proceeds of any Incremental Revolving Facility may be used by the Borrower and the Restricted Subsidiaries for working capital, capital and other general corporate purposes (including the financing of acquisitions and other Investments and Restricted Payments) and any other purpose use not prohibited by this Agreement; , and
(viixii) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding Term SOFR Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender Eligible Assignee (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Swingline Lender and any each Issuing Bank Bank) shall have consented a right to consent (such consent not to be unreasonably withheld withheld, conditioned or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or or amendments as it shall reasonably require, (ii) the Administrative Agent shall have receivedbe entitled to receive, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other customary documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received be entitled to receive all fees (if any) required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received be entitled to receive a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower each Loan Party approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(x) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such LenderRevolving ▇▇▇▇▇▇’s participations hereunder in outstanding US Swingline Loans and Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in US Swingline Loans and Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei).; and
(fii) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agreeestablishes Revolving Credit Commitments of a new Class, then (A) the availability thereof borrowing and repayment (except for (x) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required on the Maturity Date of any Revolving Facility and (z) any repayment made in connection with a permanent repayment and termination of the Revolving Credit Commitments under any Revolving Facility (subject to clause (C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving Facility shall be subject made on a pro rata basis with all other Revolving Facilities, (B) all Letters of Credit shall be participated on a pro rata basis or less than pro rata basis by all Revolving Lenders and (C) any permanent repayment of Revolving Loans with respect to, and reduction and termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, except that the Borrower shall be permitted to customary “SunGard” permanently repay Revolving Loans and reduce or “certain funds” conditionality.
(h) This Section 2.22 shall supersede terminate Revolving Credit Commitments under any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Revolving Facility on
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower At any time and from time to time, subject to the terms and conditions set forth herein, the Borrowers may, at any time, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental ), request one or more increases in the Revolving Facility Amendment to increase the aggregate amount of Credit Commitments of any existing Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental First Lien Amount minus the aggregate principal amount of Incremental Term Loans and Incremental Equivalent Debt (in each case as defined in the Term Loan Credit Agreement) incurred on or prior to the date of the incurrence of any such increaseIncremental Revolving Commitments in reliance on the Unrestricted Incremental Amount (as defined in the Term Loan Credit Agreement) plus (3) the amount of any voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date and voluntary prepayments of other Indebtedness secured on a pari passu basis with the Revolving Credit Loans (excluding (b) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (c) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (this clause (ii), the “Voluntary Prepayment Amount”) plus (4) unlimited additional Incremental Revolving Commitments and Incremental Equivalent Debt so long as, after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Revolving Commitments or Incremental Equivalent Debt, as the case may be), the First Lien Leverage Ratio for the most recently ended Test Period does not exceed (x) 3.752.05:1.00 or (y) if such Incremental Revolving Commitments are made in connection with a Permitted Acquisition or any other similar Investment not prohibited hereunder, the First Lien Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) immediately prior to the consummation of such Permitted Acquisition or other 114 #95488248v20
(b) [Reserved].
(c) Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (5) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments)), (6) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (7) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (8) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Revolving Credit Facility or are otherwise added for the benefit of the Revolving Credit Lenders hereunder.
(d) Each notice from the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments shall be reasonably satisfactory 115 #95488248v20
(e) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansFacility Closing Date”) of each of the conditions set forth in an aggregate principal amount not to exceed the Incremental Cap; provided that:
Section 4.02 (it being understood that (i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the each Loan Parties Party set forth in this Agreement and the other Loan Documents shall be Section 4.02 being true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such respect (although any representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers which expressly relate to a given date or period, it period shall be true and correct in all material respects as of such the respective date or for such the respective period; provided, further, that any representation or warranty that is qualified as the case may be) and all references to “materiality,such date of such Credit Extension” “Material Adverse Effect” shall be deemed to refer to the Incremental Facility Closing Date and (9) no Event of Default shall exist, or similar language shall would result from such issuance of the Incremental Revolving Commitment; provided in the case of Incremental Revolving Commitments the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates;
as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (viY) the proceeds Section 4.02(b) shall be limited to Specified Events of any Incremental Revolving Facility may be used for working capital, general corporate purposes Default and any other purpose not prohibited (2) governed by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (laws other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an the laws of the United States, only customary “Additional Revolving Lender”); provided that certain funds” conditions for the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld applicable jurisdiction or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate terms of the documentation governing such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees Limited Condition Transaction will be required to be paid satisfied). Upon each increase in respect of the Revolving Credit Commitments under such Incremental Revolving Credit Facility or Incremental pursuant to this Section 2.14, each Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Lender providing a portion of the Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) in respect of such increase, and each relevant such Incremental Revolving Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (i) participations hereunder in Letters of Credit under such Revolving Credit Facility and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving Lender) participations hereunder in US Letters under such Revolving Credit Facility will equal the percentage of the aggregate Revolving Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. Additionally, if any Revolving Credit Loans are outstanding under a Revolving Credit Facility at the applicable class (after giving effect to time any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).116 #95488248v20
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness Any portion of any Incremental Revolving Facility are intended Commitment incurred other than under the Incremental Incurrence Test may be reclassified at any time, as the Parent Borrower may elect from time to be applied time, as incurred under the Incremental Incurrence Test if the Parent Borrower meets the applicable ratio under the Incremental Incurrence Test at such time on a Pro Forma Basis at any time subsequent to finance an acquisition and the Lenders or Additional Revolving Lenders providing incurrence of such Incremental Revolving Facility so agreeCommitment (or would have met such ratio, the availability thereof in which case, such reclassification shall be subject deemed to customary “SunGard” or “certain funds” conditionalityhave automatically occurred if not elected by the Parent Borrower).
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower Borrowers may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (x) add one or more new Classes of term facilities (any such Class, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans” and any commitments in respect thereof, each an “Incremental Term Commitment”) and/or (y) (i) add one or more additional Classes of Commitments that are identical to each then-existing Class except for the items specified in clause (a)(v) below (each an “Additional Incremental Class”) or (ii) increase the aggregate amount of the Commitments of any then-existing Class of Commitments (each an “Increased Incremental Class”; and any such increaseAdditional Incremental Class or Increased Incremental Class, an “Incremental Revolving Facility” and together with the Incremental Term Facility, the “Incremental Facilities”); and the loans thereunder, “Incremental Revolving Loans” and together with any Incremental Term Loans, the “Incremental Loans”) ; and the Commitments in respect thereof, each an “Incremental Revolving Commitment” and together with any Incremental Term Commitments, the “Incremental Commitments”), in each case, in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower Representative and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments any Incremental Commitment shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrowers shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;,
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of each any Incremental Term Facility, may not be materially more favorable (taken as a whole) to the relevant Incremental Lenders than the terms of a term loan facility consistent with current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower Representative and the Administrative Agent in good faith),
(v) the terms of any Incremental Revolving Facility established as an Additional Incremental Class shall be identical to the terms applicable to all existing Classes except that (A) such Additional Incremental Class may rank junior in right of payment and/or security to any then-existing Class of Revolving Loans as provided in clause (xi) below (any such Additional Incremental Class, a “Last-Out Incremental Revolving Facility”), (B) the scheduled final maturity date of such Additional Incremental Class may be later than the then-existing Classes of Revolving Loans, (C) the Effective Yield (and the components thereof) and commitment fees applicable to any Last-Out Incremental Revolving Facility may be determined by the Borrower Representative and the lender or lenders providing such Last-Out Incremental Revolving Facility, (D) additional structuring, commitment and arranger and other similar fees may be paid to the lenders and/or arrangers providing such Additional Incremental Class and (E) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors fees and premiums applicable to such Incremental Revolving Facility will be substantially determined by the Borrower Representative and the lenders and/or arrangers providing such Incremental Revolving Facility; provided that for any Incremental Revolving Facility scheduled to terminate prior to the date that is one year after the Initial Revolving Credit Maturity Date, the Effective Yield applicable thereto may not be more than 0.75% higher than the Effective Yield applicable to the Initial Commitments unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor, the LIBO Rate floor, the CDOR Rate floor or the Canadian Prime Rate floor) with respect to the Initial Commitments is adjusted such that the Effective Yield with respect to the Initial Commitments is not more than 0.75% per annum less than the Effective Yield with respect to such Commitments,
(vi) the terms of any Incremental Revolving Facility established as an Increased Incremental Class shall be identical to those applicable to the applicable then-existing Class (except with respect to structuring, commitment and arranger fees and other similar fees),
(vii) the currency, pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (ix) below, the amortization schedule) applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders and/or arrangers providing such Incremental Term Facility or Incremental Term Loans,
(viii) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Maturity Date,
(ix) any Incremental Term Facility may have an amortization schedule as determined by the Borrower Representative and the lenders providing such Incremental Term Facility,
(x) subject to clauses (iv) and (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower Representative and the arrangers and/or lenders providing such Incremental Facility,
(xi) (A) (x) subject to clause (A)(y) below, any Incremental Facility may rank pari passu with or junior to any then-existing Class of Revolving Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured, it shall be subject to an Acceptable Intercreditor Agreement) or (y) with respect to any Incremental Term Loans incurred to finance the Term Loan Facility, any Incremental Term Facility (i) may rank pari passu with or junior to any then-existing Class of Revolving Loans in right of payment and (ii) may rank senior in right of security with respect to any Term Loan Priority Collateral, junior in right of security with respect to any ABL Priority Collateral or have such security ranking as set forth in an Acceptable Intercreditor Agreement and (B) no Incremental Facility may be (x) guaranteed by any subsidiary of the Borrower Representative which is not a Loan Party (it being understood that the obligations of any Person with respect to any escrow arrangement into which such Incremental Facility proceeds are deposited shall not constitute a guarantee by a subsidiary that is not a Loan Party) or (y) secured by any assets other than the Collateral (other than with respect to proceeds of such Incremental Facility that are subject to (and only for so long as they are subject to) an escrow or other similar arrangements and any upfront fees, original issue discount related deposit of cash or similar feescash equivalents to cover interest and premium with respect to such Incremental Facility);,
(vxii) any Incremental Revolving Facility may provide for the ability to participate with respect to borrowings and repayments on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis), and may provide for the ability to permanently repay and terminate Incremental Revolving Commitments on a pro rata basis or less than pro rata basis with any then-outstanding Incremental Revolving Facility (or on a greater than pro rata basis, only to the extent such Incremental Revolving Commitments are terminated in full and refinanced or replaced with Refinancing Indebtedness or an Incremental Facility incurred in reliance on clause (b) of the definition of “Incremental Cap”),
(xiii) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of an acquisition or similar Investment permitted under this Agreement, (A) subject to Section 1.10(a), no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialityFacility,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixiv) the proceeds of any Incremental Revolving Facility may be used for working capital, capital and/or other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other purpose use, in each case, not prohibited by this Agreement; , and
(viixv) at no time shall there be to the extent more than three separate one Class exists after giving effect to any such Incremental Revolving Facility, (x) the borrowing and repayment (except for (1) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings) and (2) repayments required upon the Maturity Dates in effect Date of any Revolving Facility) of Revolving Loans with respect to any Class that is pari passu with the relevant Incremental Revolving Facilities Facility in right of payment and with respect to security after the effective date of such Incremental Revolving Commitments shall be made on a pro rata basis with all other such Classes, (y) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders and (z) repayment of Revolving Loans with respect to, and reduction and termination of Commitments under, any other Additional Class that is pari passu with the relevant Incremental Revolving Facility at in right of payment and with respect to security after the effective date of such Incremental Revolving Commitment shall be made on a pro rata basis with all other such Classes, and
(xvi) no Additional Incremental Class the Maturity Date of which is later than the Initial Revolving Credit Maturity Date shall be effective as to the obligations of the Swingline Lender to make any timeSwingline Loans or any Issuing Bank with respect to Letters of Credit without the consent of the Swingline Lender or such Issuing Bank (such consents not to be unreasonably withheld or delayed) (and, in the absence of such consent, all references herein to Latest Maturity Date shall be determined, when used in reference to the Swingline Lender or such Issuing Bank, as applicable, without giving effect to the Maturity Date of such Additional Incremental Class).
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender being called an “Additional Revolving Incremental Lender”); provided that the Administrative Agent Agent, each Swingline Lender and any each Issuing Bank shall have consented a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Incremental Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Commitments or Revolving Loans to such Additional Revolving Incremental Lender.
(c) Each Lender or Additional Revolving Incremental Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower Representative all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition conditions precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, including any deliverables required by the Collateral and Guarantee Requirement, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (iii) the Administrative Agent shall have received, from each Additional Revolving Lenderon behalf of the Incremental Lenders, an administrative questionnaire, provided the amount of any fees payable to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Incremental Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and Loans, (iv) subject to Section 2.22(f), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the applicable Borrower Representative signed by a Responsible Officer thereof:
(Ai) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower Borrowers approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(Bii) to the extent applicable, certifying that the condition set forth in clause (a)(va)(xiii) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22 (i) Each each then-existing Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Additional Revolving Lender, and each relevant Incremental Additional Revolving Lender will automatically and without further act be deemed to have assumed a portion of such existing Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Credit, Swingline Loans, as applicable, Protective Advances and Overadvances such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Additional Revolving Lender) (x) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Credit, Swingline Loans, as applicable, Protective Advances and Overadvances shall be held on a pro rata basis ratably on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the increased or Additional Revolving Credit Commitment pursuant to this Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Additional Revolving Facility)Lenders, and such other Additional Revolving Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing Borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the increased or Additional Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments the Administrative Agent to this Agreement and the enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to (i) establish new tranches Classes or sub-tranches or to maintain a single tranche Classes in respect of Revolving Loans or Incremental Term Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into (ii) make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower Representative in connection with the establishment of such new tranches Classes or sub-tranches or the maintaining of such single trancheClasses, in each case case, on terms consistent with this Section 2.22.
(g) On the date of effectiveness of any Incremental Revolving Facility, the Letter of Credit Sublimits and the Swingline Sublimits permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent, the Issuing Banks, the Swingline Lenders and the Borrower Representative.
(h) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition or other Investment and the Lenders or Additional Revolving Lenders lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.con
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Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), (i) pursuant to request one or more additional tranches of term loans (the commitments thereof, the “Incremental Term Loan Commitment”, the loans thereunder, the “Incremental Term Loans” and a Lender making such loans, an “Incremental Revolving Facility Amendment to increase Term Lender”) or (ii)(A) request one or more increases in the aggregate amount of Commitments of any existing Class of the Revolving Loan Commitments (any such increaseincrease or new commitment, a “Revolving Loan Commitment Increase”) and/or (B) the establishment of one or more new Revolving Loan Commitments (any such new commitment, a “New Revolving Loan Commitment” and, together with Revolving Loan Commitment Increases, the “Incremental Revolving Loan Commitments” and, such loans thereunder, the “Incremental Revolving Loans” and, a Lender making such a commitment, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansLender”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
(i) no The aggregate amount of Incremental Term Loans and Incremental Revolving Commitment may be less than $5,000,000,Loan Commitments incurred during the term of this Agreement shall not exceed the Maximum Incremental Facilities Amount;
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender No Person shall be obligated to provide an obligor under any Incremental Revolving Commitment, Facility that is not a Loan Party with respect to all Loans and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;Commitments,
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or Both at the creation, provision or implementation thereof) shall require the approval time of any existing Lender (other than in its capacity, if any, as a Lender providing all or part such request and upon the effectiveness of any Incremental Revolving Commitment or Amendment referred to below, no Event of Default shall exist and be continuing at the time that any such Incremental Revolving Loan), the Administrative Agent Term Loan is made and (unless its rights and interests are adversely affected in any material respectafter giving effect thereto) or any other agent or arrangerno Event of Default shall exist;
(iv) the terms of each Incremental Term Loans or Incremental Revolving Facility will Loan Commitments may be substantially identical to those applicable denominated in Dollars or an Alternate Currency (it being understood that any such Incremental Term Loan or Incremental Revolving Loan Commitment may be utilized in Available Currencies as and to the extent provided in the applicable Incremental Amendment which are acceptable to the Administrative Agent and the Lenders providing such Incremental Term Loans or Incremental Revolving Facility (other than with respect to any upfront fees, original issue discount or similar feesLoan Commitments);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents The Borrower shall be true and correct in all material respects compliance with the Financial Covenant determined on and a Pro Forma Basis as of the date end of the initial Borrowing under most recently completed Test Period for which the financial statements and certificates required by Section 8.1(a) or (b), as the case may be, have been delivered (or were required to be delivered), in each case, as if such Incremental Term Loans or Incremental Revolving Facility with the same effect Loan Commitments, as though such representations and warranties applicable, had been made on outstanding and as of fully borrowed throughout such dateperiod; provided that to for purposes of determining compliance with the extent that Financial Covenant under this clause (v), the Net Cash Proceeds actually received by any representation and warranty specifically refers to a given date or period, it shall be true and correct Loan Party in all material respects as respect of such date Incremental Facility shall not be included as cash or Cash Equivalents for such period; provided, further, that any representation or warranty that is qualified as to purposes of clause (ii) of the definition of “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective datesTotal Net Secured Leverage Ratio”;
(vi) the proceeds of any The Incremental Term Loans and Incremental Revolving Facility may be used for working capital, general corporate purposes Loans shall rank pari passu in right of payment and any of security with the other purpose not prohibited by this Agreement; andLoans and Commitments hereunder;
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to The Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Term Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and shall not mature earlier than the Latest Maturity Date;
(ivviii) the Administrative Agent The Incremental Term Loans shall have received a certificate Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of existing Term Loans (including Incremental Term Loans) having the Latest Maturity Date (except by virtue of amortization of or prepayment of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately Term Loans prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.determination);
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver make a copy of such request notice available to each of the Lenders) pursuant ), request one or more additional tranches or, in consultation with the Administrative Agent, additions to an existing tranche of term loans (the “Incremental Revolving Facility Amendment to increase Term Loans”; the aggregate commitments thereunder, the “Incremental Term Loan Commitments”) or one or more increases in the amount of Commitments of any existing Class of Commitments the Revolving Commitment (any such increase, an a “Revolving Commitment Increase”; the commitments thereunder, the “Incremental Revolving FacilityCommitments” and, collectively, with the Incremental Term Loan Commitments, the “Incremental Commitments”); provided that (i) after giving effect to the making of such Incremental Term Loans or the incurrence of any Revolving Commitment Increase, the aggregate principal amount of all Incremental Term Loans and Incremental Revolving Commitments incurred pursuant to this Section 2.19 (together with any Incremental Equivalent Debt incurred pursuant to Section 7.03(s) after the Closing Date) shall not exceed (x) $346,000,000 (provided that $35,000,000 of such amount under this clause (x) shall solely be available for Revolving Commitment Increases) plus (y) an unlimited additional amount, so long as on a Pro Forma Basis after the incurrence of such Incremental Term Loans and such Incremental Revolving Commitments (A) if such Incremental Loan ranks pari passu in right of security on the Collateral with the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the First Lien Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 and (B) if such Incremental Loan ranks junior in right of security on the Collateral to the Obligations (other than any Obligations in respect of other Incremental Loans or Refinancing Facilities secured on a junior lien basis to other Obligations), the Senior Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 3.90:1.00 (it being understood that (1) any Incremental Loan may be incurred under clause (y) prior to clause (x) and regardless of whether there is capacity under clause (x), (2) to the extent that both clause (x) and clause (y) are available and the loans thereunderBorrower does not make an election, the Borrower will be deemed to have elected clause (y), (3) any amounts incurred under clause (x), the Revolving Facility, Sections 7.03(e), 7.03(m), 7.03(r), 7.03(t), 7.03(u), 7.03(z), 7.03(bb), 7.03(s)(x) or 7.03(w), in each case, together with any amounts incurred to fund original issue discount (“OID”) and upfront fees, that is concurrently incurred with, or incurred in a single transaction or series of related transactions with, amounts under clause (y) will not count as Indebtedness for the purpose of calculating the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, in clause (y) and (4) any portion of any Incremental Term Loans or any Incremental Revolving Loans”Commitments incurred in reliance on clause (x) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (y) if the Borrower meets the applicable First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, under clause (y) at such time on a Pro Forma Basis (for purposes of clarity, with any such reclassification having the effect of increasing the Borrower’s ability to incur Indebtedness under clause (x) on and after the date of such reclassification by the amount of Indebtedness so reclassified)); provided, further, that for purposes of the calculation of the First Lien Leverage Ratio and the Senior Secured Leverage Ratio used in determining the availability of Incremental Term Loans or Incremental Revolving Commitments under this Section 2.19(a), (i) any cash proceeds of any Incremental Term Loans or the Incremental Revolving Commitments, as applicable, then being incurred will not be netted for purposes of determining compliance with the First Lien Leverage Ratio or Senior Secured Leverage Ratio, as applicable, and (ii) the full amount of any Incremental Revolving Commitments then being incurred shall be deemed to be Indebtedness then outstanding (whether or not then incurred). Each 102 tranche of Incremental Term Loans shall be in an aggregate principal amount that is not to exceed the Incremental Cap; less than $5,000,000 (provided that:
(i) no Incremental Revolving Commitment that such amount may be less than $5,000,000,5,000,000 if such amount represents all remaining availability under the limit set forth in the preceding sentence).
(iib) except as separately agreed from time to time between The terms, provisions and documentation of the Lead Borrower and any Lender, no Lender Incremental Revolving Commitments shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar feesfees and, for the avoidance of doubt, any structuring, arrangement, underwriting or other similar fees not shared with all lenders providing the applicable Incremental Revolving Commitments) to the Revolving Commitments existing hereunder on the closing date of such Incremental Revolving Commitments. The following terms shall apply to any Incremental Term Loans established pursuant to an Incremental Amendment: (i) such Incremental Term Loans (A) shall rank pari passu in right of payment with all other Term Loans, (B) shall be secured by the Collateral on a pari passu or junior basis with all other Term Loans, (C) shall not be guaranteed by any person other than a Guarantor and (D) shall not be secured by any assets other than the Collateral, (ii) the maturity date of such Incremental Term Loans shall not be earlier than the Extended Term Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be less than the remaining Weighted Average Life to Maturity of the then outstanding 2021 New Term Loans (provided that the effects of any scheduled amortization or prepayments made on the 2021 New Term Loans prior to the Increased Amount Date shall be disregarded);
, (iv) if such Incremental Term Loan ranks pari passu in right of security with the existing Term Loans, such Incremental Term Loan may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments under the Loan Documents, as specified in the applicable Incremental Amendment (provided, however, that any Incremental Term Loan may participate on a greater than pro rata basis, on a pro rata basis or on a less than pro rata basis in any voluntary prepayments), (v) subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Incremental Term Loan shall be determined by the Borrower and the lenders thereunder, (vi) the applicable all-in yield relating to any Incremental Term Loans incurred under clause (y) of Section 2.19(a) pursuant to such Incremental Amendment (each facility thereunder, an “Incremental Facility”), if such Incremental Term Loans are (A) secured on a pari passu basis with the Initial Term Loans and (B) made on or prior to the date that is eighteen (18) months after the Closing Date, shall not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum unless the all-in yield applicable to the Initial Term Loans is increased so that the all-in yield applicable to the applicable Incremental Facility does not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum; provided that, in determining the all-in yield applicable to the Initial Term Loans and the applicable Incremental Facility, (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the applicable Incremental Facility), (B) structuring, arrangement, underwriting, ticking and commitment and other fees not shared with all lenders providing the Initial Term Loans or the applicable Incremental Facility, and, if applicable, consent fees for an amendment paid generally to consenting lenders, shall be excluded and (C) if the applicable Term Benchmark Rate in respect of such Incremental Facility includes a floor in excess of 1.00%, or the Alternate Base Rate in respect of such Incremental Facility includes a floor in excess of 2.00%, such excess shall be equated to interest margin for purposes of determining any increase to the applicable all-in yield under the Initial Term Loans (except to the extent such floor does not result in an increase in interest rate) and any increase in the all-in yield applicable to the Initial Term Loans required due to the application of such floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) such floor in respect of the Initial Term Loans, (vii) subject to clause (vi) above, any fees payable in connection with any such Incremental Term Loan shall be determined by the Borrower and the arrangers providing for such Incremental Term Loan and (viii) except as otherwise agreed by required or permitted above, all other terms of such Incremental Term Loans (other than (1) provisions applicable only to periods after 103
(c) Each notice from the lenders providing Borrower pursuant to this Section 2.19 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Facility in connection with any acquisitionCommitment Increase (each, investments and repaymentsan “Incremental Loan”), repurchases and redemptions of indebtedness not prohibited by the terms of this Agreementas applicable, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (Bii) the representations date on which the relevant increase is requested to become effective (the “Increased Amount Date”). Incremental Term Loans and warranties of the Revolving Commitment Increases may be made by any existing Lender (but no existing Lender shall have any obligation to make any Incremental Term Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and or Revolving Commitment Increase, as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that applicable, except to the extent that any representation and warranty specifically refers it has agreed to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as do so pursuant to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification thereinan Incremental Amendment) in all respects on such respective dates;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Additional Lender (including any required consents) under Section 9.05(b) (any the Term Lenders, Revolving Lenders or Additional Lenders making such other lender being called an Incremental Term Loans or Revolving Commitment Increase, as applicable, collectively, the “Additional Revolving LenderIncremental Lenders”); provided , provided, that the Administrative Agent and any each Issuing Bank shall have consented (such consent not to be unreasonably withheld withheld, conditioned or delayed) to such Incremental Lender to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if extent any such consent would be required under Section 9.05(b10.04(b) for an assignment of Revolving Loans to such Additional Revolving Incremental Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Lender and the Administrative Agent. Subject to this Section 2.19, the Incremental Amendment shall be on the terms, and pursuant to documentation, to be determined by the Borrower and the Incremental Lenders providing the Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable. Each Incremental Term Loan Commitment and Incremental Revolving Commitment, as applicable, shall become effective as of the applicable Increased Amount Date pursuant to the applicable Incremental Amendment; provided that (i) (x) if the applicable Incremental Term Loan Commitment and/or Incremental Revolving Commitment is not being provided in connection with a Limited Condition Transaction, no Event of Default exists or would exist after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Commitment, as applicable and (y) if such Incremental Term Loan Commitment and/or Incremental Revolving Commitment is being provided in connection with a Limited Condition 104 Transaction, no Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall exist on the applicable Increased Amount Date (provided that the condition precedent set forth under this clause (i) shall not be required to be satisfied if waived (or otherwise not required) by Persons holding more than 50% of the applicable Incremental Term Loan Commitments (in the case of an Incremental Term Loan) and/or Incremental Revolving Commitments (in the case of a Revolving Commitment Increase), as applicable) and (ii) in connection with the effectiveness of any Incremental Term Loan Commitments and/or Incremental Revolving Facility or Commitments, and the making incurrence of any related Incremental Revolving Loans, (i) upon its reasonable request, there shall be no requirement under this Section 2.19 for the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) Borrower to bring down the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender representations and warranties on the Increased Amount Date under the Loan Documents unless requested by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate Persons holding more than 50% of the applicable Borrower signed by a Responsible Officer thereof:
Incremental Term Loan Commitments (Ain the case of Incremental Term Loans) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such and/or Incremental Revolving Facility Commitments (in the case of a Revolving Commitment Increase), as applicable (provided that, in the case of Incremental Loans or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Term Loan Commitments and/or Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline LoansCommitments, as applicable, used to finance a Limited Condition Transaction, the Specified Representations (conformed for such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline LoansLimited Condition Transaction, as applicable, ) shall be held on a pro rata basis on required to be true and correct in all material respects as of the basis of their respective Commitments Increased Amount Date if requested by the Persons holding more than 50% of the applicable class Incremental Term Loan Commitments (after giving effect to any increase in the case of an Incremental Term Loan) and/or Incremental Revolving Commitments (in the case of a Revolving Commitment pursuant to Section 2.22) and (ii) Increase), as applicable). The Borrower will use the existing Lenders proceeds, if any, of the applicable Class Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall assign be obligated to provide any Incremental Term Loans or Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary Commitment Increases unless it so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e)agrees.
(fe) The Lenders hereby irrevocably authorize Any Incremental Amendment may, without the consent of any Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with (i) to effect the establishment of terms thereof, to the extent such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with are permitted under this Section 2.22.
2.19 and (ii) to effect technical and corresponding amendments to this Agreement and the other Loan Documents to effect the provisions of this Section 2.19. (f) This Section 2.19 shall supersede any provisions in Section 2.14, 2.15 or 10.08 to the contrary. (g) Notwithstanding anything Upon any Revolving Commitment Increase pursuant to this Section 2.19, (a) each of the Revolving Lenders holding Revolving Commitments immediately prior to such Revolving Commitment Increase shall assign to each of the Revolving Lenders having an Incremental Revolving Commitment, and each of the Revolving Lenders having an Incremental Revolving Commitment shall purchase from each of the Revolving Lenders holding Revolving Commitments immediately prior to such Revolving Commitment Increase, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on the closing date of such Revolving Commitment Increase as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and Revolving Lenders having an Incremental Revolving Commitment ratably in accordance with their Revolving Commitments after giving effect to the contrary in this Section 2.22 or in any other provision addition of any Loan Document, if the proceeds on the date of effectiveness of any such Incremental Revolving Facility are intended Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be applied deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each Revolving Lender having an Incremental Revolving Commitment shall become a Lender with respect to finance an acquisition the Incremental Revolving Commitments and all matters relating thereto. The Administrative Agent and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, hereby agree that the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision minimum borrowing and prepayment requirements in Section 2.18 or 9.02 2.02 and 2.12 of this Agreement shall not apply to the contrary and shall, transactions effected pursuant to extent applicable, be subject in all respects to Section 1.11.the immediately preceding sentence. 105 Section
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead Borrower and any LenderLender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments any Incremental Commitment shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent (unless its rights and interests it being agreed that any terms contained in such Incremental Term Facility (x) which are adversely affected in any material respectapplicable only after the then-existing Latest Term Loan Maturity Date and/or (y) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable that are more favorable to the Revolving Facility (other than with respect to any upfront fees, original issue discount lenders or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions agent of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall be deemed satisfactory to the Administrative Agent) and (B) the representations terms of any Incremental Revolving Facility shall be identical (including with respect to pricing, maturity and warranties fees) to the terms of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as then-existing Class of the date of the initial Borrowing under Revolving Facility such Incremental Revolving Facility with increases,
(v) the same effect as though Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such representations and warranties had been made on and as of such dateIncremental Facility; provided that the Effective Yield applicable to any Incremental Facility may not be more than 0.50% higher than the Effective Yield applicable to the extent Initial Loans and Initial Revolving Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Adjusted Eurocurrency Rate floor) with respect to the Initial Loans or Initial Revolving Loans, as applicable, is adjusted such that any representation and warranty specifically refers the Effective Yield on such Initial Loans or Initial Revolving Loans is not more than 0.50% per annum less than the Effective Yield with respect to a given date or period, it shall be true and correct in all material respects as of such date or for such periodIncremental Facility; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect increase in Effective Yield applicable to any qualification therein) Initial Loan due to the application or imposition of an Alternate Base Rate floor or Adjusted Eurocurrency Rate floor on any Incremental Term Loan may, at the election of the Borrower, be effected through an increase in all respects on the Alternate Base Rate floor or Adjusted Eurocurrency Rate floor applicable to such respective dates;
Initial Loan, (vi) (A) the proceeds of final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and (B) no Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
have a final maturity date earlier than (vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld require scheduled amortization or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (iimandatory commitment reductions prior to) the Administrative Agent shall have received, from each Additional Latest Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Maturity Date,
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Sources: Credit Agreement (First Watch Restaurant Group, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower One or more Borrowers (or Subsidiary Guarantors that will become Borrowers) may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of revolving commitments and/or increase the aggregate amount of the Revolving Credit Commitments of any existing Class of Commitments (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,0005,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as separately agreed from time to time between the Lead a Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or nor the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender lender providing all or part of such Incremental Facility or Incremental Loan,
(iv) any such Incremental Revolving Commitment or Facility shall either (A) be subject to the same terms and conditions as any then-existing Revolving Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Loan)Facility, the Parent may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Parent) shall be substantially consistent with the Initial Revolving Loans or shall be reasonably satisfactory to the Administrative Agent (unless its rights and interests are adversely affected in it being understood that if any material respect) financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other agent provision is (1) also added for the benefit of any then-existing Revolving Facility or arranger;(2) only applicable after the applicable Latest Revolving Loan Maturity Date),
(ivv) the terms Effective Yield (and the components thereof) applicable to any Incremental Facility may be determined by the Parent and the lender or lenders providing such Incremental Facility; provided that, in the case of each any broadly syndicated Dollar-denominated Incremental Revolving Facility will Term Facility, the Effective Yield applicable thereto may not be substantially identical to those more than 0.50% higher than the Effective Yield applicable to the Revolving Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Eurocurrency Rate floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility (other this proviso, the “MFN Provision”); provided further that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Eurocurrency Rate floor on any Incremental Term Loan may, at the election of the Parent, be effected through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or Eurocurrency Rate floor applicable to such Initial Term Loans or an increase in the interest rate margin applicable to such Incremental Loans; provided further that the MFN Provision shall not apply to (1) Incremental Term Facilities having an aggregate principal amount not exceeding $750,000,000 (as selected by the Parent), (2) Incremental Term Facilities scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date or (3) Incremental Term Facilities incurred more than 12 months after the Closing Date,
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any upfront feesIncremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date at the time of the incurrence thereof; provided, original issue discount that the foregoing limitation shall not apply to customary bridge loans with a maturity date not longer than one year; provided, that any loans, notes, securities or similar feesother Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vi);,
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception, the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans; provided, that the foregoing limitation shall not apply to customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii),
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Parent and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) except as otherwise agreed by above, to the lenders providing the relevant Incremental Revolving Facility extent applicable, any fees payable in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited Incremental Facility shall be determined by the terms of this Agreement, Parent and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) each Incremental Facility shall rank pari passu with the Initial Term Loans (in the case of any Incremental Term Facility) and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by Liens on any assets other than the Collateral,
(xi) any Incremental Term Facility may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b),
(xii) no Specified Event of Default shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Revolving Facility and (Bexcept in connection with any acquisition or other Investment or irrevocable repayment or redemption of Indebtedness, where no such Specified Event of Default shall exist at the time as elected by the Parent pursuant to Section 1.04(e)),
(xiii) except as otherwise required or permitted in clauses (iv) through (xi) above, all other terms of any Incremental Term Facility shall be as agreed between the representations and warranties of the Loan Parties set forth in this Agreement Parent and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under lenders providing such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materialityTerm Facility,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vixiv) the proceeds of any Incremental Revolving Facility may be used for working capital, Capital Expenditures and other general corporate purposes of the applicable Borrowers and their subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments and any other purpose not prohibited by this Agreement; the terms of the Loan Documents), and
(viixv) on the date of the making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at no time shall there the election of the Parent, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be more less than three separate Maturity Dates in effect with respect one month) that begin during an Interest Period then applicable to Incremental Revolving Facilities outstanding Eurocurrency Rate Loans or BA Rate Loans of the relevant Class and any other Additional Revolving Facility at any timewhich end on the last day of such Interest Period.
(b) Incremental Revolving Commitments may be provided by any existing Lender, Lender or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) Eligible Assignee (any such other lender Eligible Assignee being called an “Additional Revolving Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Swingline Lender and any Issuing Bank Bank) shall have consented (such consent not to be unreasonably withheld withheld, conditioned or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b10.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 10.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Loan Document Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower Parent all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan DocumentAmendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, questionnaire in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) upon its request, the Administrative Agent shall have received a certificate of the applicable Borrower Parent signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower Borrowers approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(va)(xii) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22:
(i) Each Lender if such Incremental Revolving Facility establishes Revolving Credit Commitments of the applicable same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender’s) (A) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and (B) participations hereunder in Swingline Loans, as applicable, Loans shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments of the applicable class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed 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 (ei); and
(ii) if such Incremental Revolving Facility establishes Revolving Credit Commitments of a new Class, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on any Revolving Facility, (B) repayments required upon the Maturity Date of any Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of any Revolving Credit Commitments (subject to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments shall be made on a pro rata basis with any then-existing Revolving Facility, (2) all swingline loans and/or letters of credit made or issued, as applicable, under such Incremental Revolving Facility shall be participated on a pro rata basis by all Revolving Lenders and (3) any permanent repayment of Revolving Loans with respect to, and reduction or termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of any Incremental Revolving Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, except that the applicable Borrowers shall be permitted to permanently repay Revolving Loans and terminate Revolving Credit Commitments of any Revolving Facility on a greater than pro rata basis (I) as compared to any other Revolving Facilities with a later Maturity Date than such Revolving Facility or (II) to the extent refinanced or replaced with a Replacement Revolving Facility or Replacement Debt.
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on On the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agreeFacility, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shallmaximum amount of LC Exposure and/or Swingline Loans, to extent as applicable, be subject in all respects to Section 1.11.permitted hereunder shall increase by an amount, if any, agreed upon by the Admini
Appears in 1 contract
Sources: Restatement Agreement (Valeant Pharmaceuticals International, Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice of an Authorized Officer of the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the LendersLenders),Amendment No. 3 Effective Date (i) pursuant request one or more additional tranchesTranches of term loans or one or more increases to an existing trancheTranche of Term Loans (the commitments thereof, the “Incremental Revolving Facility Amendment to increase Term Loan Commitments,”, the aggregate loans thereunder, the “Incremental Term Loans” and a Lender making such loans, an “Incremental Term Lender”) or (ii) (A) request one or more increases in the amount of Commitments of any existing Class of the Revolving Loan Commitments (any such increase, a “Revolving Loan Commitment Increase”) and/or (B) subject to Section 2.1(fd ), the establishment of one or more new Revolving Loan Commitments (any such new commitment, a “New Revolving Loan Commitment” and, together with Revolving Loan Commitment Increases, the “Incremental Revolving Loan Commitments” and, such loans thereunder, the “Incremental Revolving Loans” and, a Lender making such a commitment, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving LoansLender”) in an aggregate principal amount not to exceed the Incremental Cap); provided that:
(i) no Thethe aggregate amount of Incremental Term Loans and Incremental Revolving Commitment may be less than $5,000,000,Loan Commitments incurredFacilities Incurred during the term of this Agreement shall not exceed the Maximum Incremental Facilities Amount;
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender Nono Person shall be obligated to provide an obligor under any Incremental Revolving Commitment, Facility that is not a Loan Party with respect to all Loans and the determination to provide such commitments shall Commitmentsand no Incremental Facility may be within the sole and absolute discretion of such Lendersecured by assets that are not Collateral;
(iii) Both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall existDocument and, at the time that any such Incremental Revolving Facility Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist; provided that if the proceeds of any Incremental Term Loans or Incremental Revolving Loan Commitments are intended to be used to consummatefinance a Permitted Acquisition or other Investment permitted hereunder, in each case that is a Limited Condition Transaction, then the requirementsrequirement of no Default or Event of Default set forth in this clause (iii) may be waived or not required by the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any applicable Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility Lenders (other than with respect to any upfront fees, original issue discount or similar feesa Default orSignificant Event of Default pursuant to Sections 11.1(a) and);
(viv) except as otherwise agreed by upon the lenders providing effectiveness of any Incremental Document and at the relevant time that any such Incremental Revolving Facility in connection with any acquisition, investments Term Loan is made (and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) thereto), the representations and warranties of made by any Loan Party in or pursuant to the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the such date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been if made on and as of such date; provided that date (except to the extent that any representation already qualified by materiality, in which case, such representations and warranty specifically refers to a given date or period, it warranties shall be true and correct in all respects), except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date or for (except to the extent already qualified by materiality, in which case, such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language representations and warranties shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) respects); provided that if the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Term Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received Loan Commitments are intended to be used to finance a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving Permitted Acquisition or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving LoansInvestment permitted hereunder, in each case to that is a Limited Condition Transaction, then the extent necessary so that all of the Lenders of such Class participate requirements set forth in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(ffiv) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as ) may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize limited by the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything applicable Incremental Lenders to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.Specified Representations;
Appears in 1 contract
Sources: Amendment No. 3 (Informatica Inc.)
Incremental Credit Extensions. (a) The Lead Borrower may, may at any time, time or from time to time on one or more occasions deliver a after the Effective Date, by written request notice delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy i) add one or more additional Classes of such request to each term loans or additional term loans of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of same Class as any existing Class of term loans (an “Incremental Term Facility”) and/or increase the principal amount of the Term Loans by requesting new term loan commitments to be added to such Loans (an “Incremental Term Increase”, and together with any Incremental Term Facility, the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (any each such increase, an “Incremental Revolving FacilityCommitment Increase”) and/or (iii) one or more additional tranches of revolving commitments (the “Additional Revolving Commitments” and, together with the Incremental Term Loans and the loans thereunderIncremental Revolving Commitment Increase, the “Incremental Facilities”); provided that, at the time that any such Incremental Term Loan, Incremental Revolving Loans”Commitment Increase or Additional Revolving Commitment is made or effected, no Event of Default (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Acquisition, no Event of Default pursuant to Sections 7.01(a), (b), (h) in an or (i)) shall have occurred and be continuing. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $2,000,000 and integral multiples of $500,000 in excess thereof if such Incremental Facilities are denominated in dollars (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $2,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(i) The Incremental Term Loans (a) shall rank equal in right of payment with the Term Loans, shall be secured only by the Collateral securing the Secured Obligations, shall be secured by the Collateral on a pari passu basis with the Credit Facilities, and shall not be guaranteed by any Person which is not a Loan Party, (b) shall not mature earlier than the Term Maturity Date with respect to the Initial Term Loans (except in the case of bridge loans the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the Term Maturity Date respect to the Initial Term Loans), (c) shall not have a shorter Weighted Average Life to Maturity (except in the case of bridge loans the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the Term Maturity Date applicable to the then-existing Term Loans) than the remaining Term Loans, (d) shall have a maturity date (subject to clause (b)), an amortization schedule (subject to clause (c)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the Additional Term Lenders thereunder; provided that in the event that the Effective Yield for any Incremental Term Loans that are secured by the Collateral on a pari passu basis with the Secured Obligations and incurred on or prior to the date that is eighteen months after the Effective Date is greater than the Effective Yield for any Class of Term Loans by more than the MFN Cushion, then the Effective Yield for each such Class of Term Loans shall be increased to the extent necessary so that the Effective Yield for each such Class of Term Loans are equal to the Effective Yield for the Incremental Term Loans minus the MFN Cushion (provided that the “LIBOR floor” applicable to the outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental CapTerm Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding) (any required adjustment to the Effective Yield described in this clause (d) shall be referred to herein as an “MFN Adjustment”), (e) other than with respect to Credit Agreement Refinancing Indebtedness shall not participate on a greater than pro rata basis than the Initial Term Loans with respect to any mandatory prepayment (other than any scheduled amortization payment) provided that the Borrower and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis and (f) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that:
that except with respect to matters contemplated by clauses (ib), (c), (d) and (e) above, the covenants, events of default and guarantees of any such Incremental Term Loans shall not be materially more restrictive to the Borrower, when taken as a whole, than the terms of the Initial Term Loans, unless (1) the Lenders under the Term Loans also receive the benefit of such more restrictive terms (together with, at the election of the Borrower, any applicable “equity cure” provisions with respect to any financial maintenance covenant) (it being understood to the extent that any covenant is added for the benefit of any such Incremental Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such covenant is also added for the benefit of any corresponding existing Term Loans), (2) any such provisions apply after the Latest Maturity Date at the time of incurrence of such Incremental Revolving Commitment may Facility, (3) such terms are on market terms at the time of establishment of such Incremental Term Facility, as determined in good faith by the Borrower or (4) such terms shall be less reasonably satisfactory to the Administrative Agent and the Borrower; provided further that in no event shall it be a condition to the effectiveness of, or borrowing under, any such Incremental Term Loans that any representation or warranty of any Loan Party set forth herein (other than $5,000,000,“specified representations”) be true and correct, except and solely to the extent required by the Additional Term Lenders providing such Incremental Term Loans.
(ii) except Any Incremental Revolving Commitment Increase shall be treated the same as separately agreed from time the Class of Revolving Commitments being increased (including with respect to time between the Lead maturity date thereof and scheduled or mandatory prepayment or commitment reductions) and shall be considered to be part of the Class of Revolving Loans being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(iii) Any Additional Revolving Commitments (a) shall rank equal or subordinate in right of payment with the initial Revolving Loans, shall be secured only by the Collateral securing the Secured Obligations, shall be secured by the Collateral on a pari passu basis with the Credit Facilities, and shall not be guaranteed by any Person that is not a Loan Party, (b) shall not mature earlier than the Revolving Maturity Date with respect to the Initial Revolving Loans, (c) shall not require any scheduled or mandatory prepayment or commitment reduction prior to the Revolving Maturity Date, (d) other than with respect to Credit Agreement Refinancing Indebtedness shall not participate on a greater than pro rata basis than the initial Revolving Commitments with respect to any mandatory prepayment or commitment reduction, provided that the Borrower and the lenders providing the relevant Additional Revolving Commitments shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment or commitment reduction on a less than pro rata basis and (e) may otherwise have terms and conditions different from those of the Revolving Loans (including currency denomination); provided that except with respect to matters contemplated by clauses (b), (c),(d) and (e) above, the covenants, events of default and guarantees of any such Additional Revolving Commitments shall not be materially more restrictive to the Borrower, when taken as a whole, than the terms of the initial Revolving Commitments, unless (1) the Lenders with initial Revolving Commitments also receive the benefit of such more restrictive terms (together with, at the election of the Borrower, any applicable “equity cure” provisions with respect to any financial maintenance covenant) (it being understood to the extent that any covenant is added for the benefit of any such Additional Revolving Commitments, no consent shall be required from the Administrative Agent or any Lender to the extent that such covenant is also added for the benefit of any corresponding initial Revolving Commitments), (2) any such provisions apply after the Latest Maturity Date at the time of incurrence of such Incremental Facility, (3) such terms are on market terms at the time of establishment of such Additional Revolving Commitments, as determined in good faith by the Borrower or (4) such terms shall be reasonably satisfactory to the Administrative Agent and the Borrower; provided further that in no event shall it be a condition to the effectiveness of, or borrowing under, any such Additional Revolving Commitments that any representation or warranty of any Loan Party set forth herein (other than “specified representations”) be true and correct, except and solely to the extent required by the Lenders providing such Additional Revolving Commitments.
(c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount of the relevant Incremental Facility.
(d) Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall shall, unless it agrees, be obligated to provide any Incremental Revolving CommitmentFacilities) or by any Additional Lender; provided that (i) the Administrative Agent shall have consent rights (not to be unreasonably withheld, and the determination conditioned or delayed) with respect to provide such commitments shall be within the sole and absolute discretion of such Additional Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if anysuch consent would be required pursuant to Section 9.04 for an assignment of Loans or Commitments, as a applicable, to such Additional Lender providing all or part of and (ii) solely with respect to any Incremental Revolving Commitment Increase or Incremental any Additional Revolving Loan)Commitment, the Administrative Agent Issuing Banks shall have consent rights (unless its rights and interests are adversely affected in any material respectnot to be unreasonably withheld, conditioned or delayed) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront feessuch Additional Lender, original issue discount if such consent would be required pursuant to Section 9.04 for an assignment of Revolving Loans or similar fees);
(v) except Revolving Commitments, as otherwise agreed by the lenders providing the relevant applicable, to such Additional Lender. Incremental Term Loans and loans under Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions Commitment Increases or Additional Revolving Commitments shall be a “Loan” for all purposes of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(vi) the proceeds consent of any Incremental Revolving Facility may be used for working capitalother Lenders, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the establishment relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such new tranches or sub-tranches or conditions as the maintaining of such single tranche, in each case on terms consistent with parties thereto shall agree and as required by this Section 2.222.20. The Borrower will use the proceeds of the Incremental Facilities for working capital and other general corporate purposes of the Borrower and its Subsidiaries, including capital expenditures, Permitted Acquisitions and other Investments, Restricted Payments and the refinancing of Indebtedness, and any other use not prohibited by the Loan Documents.
(ge) Notwithstanding anything to the contrary in contrary, this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.20 shall supersede any provision provisions in Section 2.18 or Section 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Lead Borrower mayAt any time and subject to the terms and conditions of this Section 2.19, at any time, on the Company may request (i) one or more occasions deliver tranches of additional term loans (the "Incremental Term Loans") and/or (ii) one or more increases in the Aggregate Revolving Credit Commitments (each such increase, a "Revolving Credit Commitment Increase") with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) but without the consent of any Lender not providing such Incremental Term Loans or Revolving Credit Commitment Increases, as the case may be; provided that the aggregate amount of all Incremental Term Loans and Revolving Credit Commitment Increases made during the term of this Agreement after the Second Amendment Effective Date shall not exceed the Dollar Equivalent of $250,000,000. Any tranche of Incremental Term Loans (A) shall be available to the Company in Dollars and (B) shall rank pari passu in right of payment and security, if any, with the Revolving Credit Loans, (C) shall not mature earlier than the Revolving Facility Termination Date (but may have amortization prior to such date, may be required to be mandatorily prepaid in full or in part prior to prepayment of the Revolving Credit Loans, and may permit voluntary prepayments thereof) and (D) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Loans; provided that (1) the terms and conditions applicable to the pricing, fees, amortization and mandatory prepayments regarding any tranche of Incremental Term Loans may differ from those applicable to Revolving Credit Loans.
(b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in a minimum amount of $25,000,000 and integral multiples of $5,000,000. A commitment to make Incremental Term Loans shall become an "Incremental Term Loan Commitment" under this Agreement, and a commitment to participate in a Revolving Credit Commitment Increase shall become a "Revolving Credit Commitment" (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s Revolving Credit Commitment) under this Agreement, in any such case, pursuant to a "Commitment and Acceptance" substantially in the form of Exhibit I (a "Commitment and Acceptance"). Any request for a tranche of Incremental Term Loans or a Revolving Credit Commitment Increase shall be made in a written request notice (an "Increase Notice") given to the Administrative Agent by the Company not less than ten Business Days (whereupon or such shorter period agreed to between the Administrative Agent and the Company) prior to the proposed effective date therefor, which Increase Notice shall promptly deliver a copy of such request to each specify the amount of the Lendersproposed tranche of Incremental Term Loans or the Revolving Credit Commitment Increase, as the case may be, and the proposed effective date thereof. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution or other Person engaged in the business of making commercial loans (any such other bank or other financial institution or other Person, a "Proposed New Lender") pursuant as determined by the Company; provided that (i) any Proposed New Lender shall be consented to an by the Administrative Agent and the Company; provided that (such consent not to be unreasonably withheld conditioned or delayed), and (ii) any Proposed New Lender in the case of a Revolving Credit Commitment Increase shall be also be consented to by the Issuer (and the Swing Lender (in each case, such consent not to be unreasonably withheld conditioned or delayed). The Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the Revolving Facility Amendment to increase Credit Commitment Increase, of the amount of each Lender’s and Proposed New Lender’s Incremental Term Loan Commitment or new or increased Revolving Credit Commitment, as applicable, and the resulting aggregate amount of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the amount of the Aggregate Revolving Credit Commitments, as the case may be, which amount shall be effective on the following Business Day, subject to the satisfaction of the conditions described in clause (c) below.
(c) Without limiting the applicability of any existing Class conditions to Advances set forth in this Agreement, the effectiveness of any tranche of Incremental Term Loan Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “corresponding availability of the related Incremental Term Loans) and the effectiveness of each Revolving Loans”) in an aggregate principal amount not Credit Commitment Increase shall be subject to exceed the Incremental Cap; provided thatfollowing conditions precedent:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between As of the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion proposed effective date of such Lender;
Incremental Term Loan Commitments (iii) no and related Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respectTerm Loans) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this AgreementCredit Commitment Increase, (Ax) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the all representations and warranties of the Loan Parties set forth in this Agreement under Article V and the other Loan Documents shall be true and correct in all material respects as though made on and such date (except with respect to any representation or warranty expressly stated to have been made as of the a specific date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had which shall have been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such specified date), (y) no event shall have occurred and then be continuing which constitutes an Unmatured Default or a Default and (z) the Company shall have demonstrated to the Administrative Agent’s reasonable satisfaction that, as of the proposed effective date of the Revolving Credit Commitment Increase or Incremental Term Loan Commitments, as the case may be, after giving effect thereto, the Company and its Subsidiaries are in compliance on a pro forma basis with the covenants contained in Sections 6.17 and 6.18 recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available, as if such periodRevolving Credit Commitment Increase or Incremental Term Loan Commitments, as applicable, had been effective as of the first day of each relevant period for testing such compliance; provided, furtherhowever, that, notwithstanding anything in Section 4.2 or elsewhere herein to the contrary, for Incremental Term Loan Commitments (and related Incremental Term Loans) that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language are requested in connection with the financing of a Limited Condition Acquisition, the effectiveness and availability thereof shall be true subject to the satisfaction on the date thereof of only such conditions precedent as the parties to such Incremental Term Loan Commitments shall agree.
(ii) the Borrowers, the Administrative Agent and correct (after giving effect each Proposed New Lender or Lender that shall have agreed to any qualification therein) provide a "Commitment" in all respects on support of such respective datesIncremental Term Loans or Revolving Credit Commitment Increase shall have executed and delivered a Commitment and Acceptance;
(viiii) counsel for the Borrowers and the Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent;
(iv) the proceeds Borrowers, the Guarantors and the Proposed New Lenders shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Administrative Agent shall have reasonably requested in connection with such increase (including, in the case of a tranche of Incremental Term Loans, an amendment to, or amended and restatement of, this Agreement and, as appropriate, the other Loan Documents (an "Incremental Term Loan Amendment"), executed by the Borrowers, each Lender agreeing to provide such Incremental Term Loans, if any, each Proposed New Lender, if any, and the Administrative Agent, which amendment or amendments may, without the consent of any Incremental Revolving Facility other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be used for working capitalnecessary or appropriate, general corporate purposes in the reasonable opinion of the Administrative Agent, to effect such Incremental Term Loans in accordance with this Section 2.19), and any other purpose not prohibited by this Agreementeach Loan Party shall have reaffirmed its obligations, and the Liens granted, under the Loan Documents; and
(viiv) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental the case of a Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Credit Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable requestIncrease, the Administrative Agent shall have received customary written opinions administered the reallocation of counselthe Aggregate Revolving Credit Outstandings on the effective date of such increase ratably among the Revolving Credit Lenders (including new Lenders) after giving effect to such increase; provided, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, that (ii1) the Administrative Agent shall have receivedBorrowers hereby agree to compensate the Lenders for all losses, from each Additional Revolving Lender, an administrative questionnaire, provided to such Additional Revolving expenses and liabilities incurred by any Lender by in connection with the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require sale or assignment of any Eurocurrency Loan resulting from such Additional Revolving Lenderreallocation on the terms and in the manner set forth in Section 3.3, and (iii2) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 reallocations effected pursuant to this clause (ev).
. Upon satisfaction of the conditions precedent to any tranche of Incremental Term Loans or Revolving Credit Commitment Increase, the Administrative Agent shall promptly advise the Company and each Lender of the effective date thereof (f) The Lenders hereby irrevocably authorize each such amendments effective date, an "Increase Effective Date"). Upon any Increase Effective Date that is supported by a Proposed New Lender, such Proposed New Lender shall become a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or other Loan Documents as may be necessary in order requirement on the part of any Lender to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving make Incremental Term Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22increase its Revolving Credit Commitment at any time.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.
Appears in 1 contract
Sources: Credit Agreement (Diebold Inc)
Incremental Credit Extensions. (a) The Lead Parent Borrower may, may at any timetime or from time to time after the Closing Date, on one or more occasions deliver a written request by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders), request (i) pursuant one or more additional Classes of term loans in the form of term A loans as reasonably determined by the Parent Borrower (“Tranche A Incremental Term Loans”) or other term loans (“Tranche B Incremental Term Loans”) or increases to an existing Classes of Term Loans (a “Term Loan Increase” and collectively, with the Tranche A Incremental Revolving Facility Amendment to increase Term Loans and Tranche B Incremental Term Loans, the aggregate “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, a “Revolving Commitment Increase”) or one or more additional Classes of any existing Class of Commitments revolving credit commitments under this Agreement (any such increasenew commitment, an collectively with any Revolving Commitment Increase, the “Incremental Revolving Facility” Credit Commitments”, and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving CommitmentCredit Commitments or any Incremental Term Loans, and a “Credit Increase”); provided upon the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part effectiveness of any Incremental Revolving Commitment or Incremental Revolving Loan)Amendment referred to below, the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior (or, in the case of any Credit Increase incurred to finance a Limited Condition Acquisition, no Event of Default (as determined in accordance with Section 1.11(d)) shall exist on the LCA Test Date and no Specified Default shall exist on the date that such Credit Increase becomes effective). Each Credit Increase shall be in an aggregate principal amount that is not less than $25,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of the Credit Increases plus the aggregate principal amount of Incremental Equivalent Debt incurred shall not exceed the sum of (x) $450,000,000 plus (y) the maximum amount at the time of such proposed Credit Increase (or incurrence of Incremental Equivalent Debt) that could be incurred such that after giving pro forma effect to such Credit Increase (or incurrence of Incremental Equivalent Debt) (assuming that all Incremental Revolving Facility Credit Commitments are fully drawn and (B) excluding the representations and warranties cash proceeds of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as any such Credit Increase for purposes of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such datenetting; provided provided, that to the extent that any representation and warranty specifically refers the proceeds thereof are used to a given date or periodrepay Indebtedness, it pro forma effect shall be true and correct in all material respects given to such repayment of Indebtedness), the First Lien Net Leverage Ratio does not exceed 3.30 to 1.00 as of the last date for which Section 5.04 Financials have been delivered to the Administrative Agent (it being understood that Credit Increases may be incurred under both clauses (x) and (y), and proceeds from any such date or incurrence under both clauses (x) and (y) may be utilized in a single transaction by first calculating the incurrence under clause (y) above and then calculating the incurrence under clause (x) and, for the avoidance of doubt, any such period; providedincurrence under clause (x) shall not be given pro forma effect for purposes of determining the First Lien Net Leverage Ratio for purposes of effectuating the incurrence under clause (y) in such single transaction) plus (z) the aggregate principal amount of Term Loans and Revolving Loans (to the extent accompanied by a permanent reduction of the Revolving Credit Commitments) prepaid pursuant to Section 2.12 (which reduction, furtherin the case of prepayments pursuant to Section 2.12(f), that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true limited to the cash amount paid) and correct the aggregate amount of Incremental Equivalent Debt voluntarily repaid (after giving effect to any qualification therein) the extent, in all respects on such respective dates;
(vi) the proceeds case of any revolving Incremental Equivalent Debt, accompanied by a permanent reduction of the applicable revolving commitments), in each case in this clause (z), other than prepayments of Credit Increases or Incremental Equivalent Debt incurred under (y) of the Incremental Cap (such amount, the “Incremental Cap”). Each Incremental Term Loan (1) shall rank pari passu in right of payment and of security with the Revolving Loans and the then-existing Term Loans, (2) shall not mature earlier than the then latest Term Loan Maturity Date applicable to the Tranche A Term Loans in the case of Tranche A Incremental Term Loans or applicable to the Tranche B Term Loans in the case of Tranche B Incremental Term Loans, (3) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the then-existing Tranche A Term Loans in the case of Tranche A Incremental Term -104- Loans or the then-existing Tranche B Term Loans in the case of Tranche B Incremental Term Loans and (4) shall be treated in the same manner as the Term Loans for purposes of Section 2.13(e) and Section 2.17(b). Each Incremental Revolving Facility Credit Commitment (1) shall rank pari passu in right of payment and of security with the Revolving Loans and the then-existing Term Loans, (2) shall not mature earlier than the then latest Revolving Credit Maturity Date, (3) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the then-existing Revolving Credit Commitments and (4) shall be treated in the same manner as the Revolving Credit Commitments for purposes of Section 2.17(b). Each notice from the Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Term Loans may be used for working capitalmade, general corporate purposes and any other purpose not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facility at any time.
(b) Incremental Revolving Credit Commitments may be provided provided, by any existing Lender, Lender or by any other lender (bank or other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) financial institution (any such other lender bank or other financial institution being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank relevant Persons under Section 9.04(b) shall have consented (such consent in each case, not to be unreasonably withheld or delayed) to the relevant Additional Revolving such Lender’s provision of or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Commitments Credit Commitments, if such consent would be required under Section 9.05(b9.04(b) for an assignment of Loans or Revolving Loans Credit Commitments, as applicable, to such Lender or Additional Lender. The Arrangers agree, upon the request of the Parent Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, to use their commercially reasonable efforts to obtain any Additional Lenders to make any such requested Incremental Term Loans or Incremental Revolving LenderCredit Commitments; provided that the Arrangers’ agreement to use such efforts does not constitute a commitment to provide any such requested Incremental Term Loans or Incremental Revolving Credit Commitments. With respect to Incremental Term Loans, any Affiliated Lender providing an Incremental Term Loan shall be subject to the same restrictions set forth in Section 9.04(l) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans.
(cb) Each Commitments in respect of Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by each Borrower, each Lender or agreeing to provide such Commitment, if any, each Additional Revolving Lender providing a portion Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any Incremental Revolving Commitment shall execute other Lenders, effect such amendments to this Agreement and deliver to the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower all such documentation (including Parent Borrower, to effect the relevant Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitmentprovisions of this Section 2.24. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the The effectiveness of any Incremental Revolving Facility or Amendment shall be subject to the making of any Incremental Revolving Loans, satisfaction on the date thereof (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lendereach, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative QuestionnaireIncremental Facility Closing Date”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate each of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy conditions set forth in the Incremental Amendment; provided, that no Event of the resolutions adopted by the governing body of the applicable Borrower approving or consenting Default shall exist after giving effect to such Incremental Amendment (or, in the case of Credit Increases incurred to finance a Limited Condition Acquisition, no Event of Default (as determined in accordance with Section 1.11(d)) shall exist on the LCA Test Date and no Specified Default shall exist on the date that such Credit Increase becomes effective). The Parent Borrower may use the proceeds of Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Credit Increases unless it so agrees in its sole discretion. Upon each Revolving Facility or Incremental Commitment Increase pursuant to this Section 2.24, (a) each Revolving Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each relevant Incremental such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, Loans such that, after giving effect to each such deemed assignment and assumption of participations, all the percentage of the Lenders’ aggregate outstanding (including each Incremental Revolving Lenderi) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16.
(c) The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents and, for the avoidance of doubt, shall not be secured by assets other than the Collateral (except to the extent permitted by the applicable intercreditor agreement) or guaranteed by any subsidiary of Holdings that is not a Loan Party. The Loan 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 after giving effect to the establishment of any such Class of Term Loans or any such new Commitments.
(d) In the event that the All-In Yield for any Tranche A Incremental Term Loans or Tranche B Incremental Term Loans is higher than the All-In Yield for the initial Tranche A Term Loans or the initial Tranche B Term Loans, as applicable, by more than 50 basis points, then the Applicable Percentage for the initial Tranche A Term Loans or the initial Tranche B Term Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case increased to the extent necessary so that all the All-In Yield for the initial Tranche A Term Loans or the initial Tranche B Term Loans, as applicable, is equal to the All-In Yield for such Tranche A Incremental Term Loans or Tranche B Incremental Term Loans, as applicable, minus 50 basis points (the “MFN Adjustment”).
(e) The terms, provisions and documentation of each Credit Increase, except as otherwise set forth herein, shall be as agreed between the Parent Borrower and the applicable Lenders providing such Credit Increase; provided that to the extent the terms of such Credit Increase are not consistent with the Revolving Credit Facility or the applicable Term Loan Facility, as the case may be (except to the extent permitted by this Section 2.24), the terms of such Credit Increase shall be not materially more favorable, taken as a whole (as reasonably determined by the Parent Borrower in good faith), to such Lenders than the terms of the Revolving Credit Facility or the applicable Term Loan Facility, as the case may be, unless the existing Lenders under such Credit Facility receive the benefit of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of favorable terms, or such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply terms are reasonably satisfactory to the transactions effected pursuant Administrative Agent (provided that terms and conditions applicable after the latest Revolving Credit Maturity Date or Term Loan Maturity Date applicable to this clause (esuch Credit Facility shall be deemed to be acceptable to the Administrative Agent).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of such single tranche, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 2.24 shall supersede any provision provisions in Section 2.18 or 9.02 9.08 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11contrary.
Appears in 1 contract
Sources: Credit Agreement (VWR Corp)
Incremental Credit Extensions. (a) The Lead Borrower may, subject to clause (b) below, at any time, on one or more occasions occasions, deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to increase the aggregate amount of Commitments of (other than any existing Class of Commitments Initial Peak Season Commitment or the FILO Revolving Sublimit) then in effect (any such increase, an “Incremental Revolving Facility” ”; the commitment thereunder, an “Incremental Revolving Commitment”; and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed (x) with respect to the Incremental FILO Revolving Facility under clause (b) below, the Incremental FILO Cap, (y) with respect to the Additional European Incremental Revolving Facility, the Incremental European Cap and (z) with respect to each other Incremental Revolving Facility, the Incremental Cap; provided that, with respect to any Incremental Revolving Facility (including, for the avoidance of doubt, the Incremental FILO Revolving Facility and the Additional European Incremental Revolving Facility), except as expressly set forth below:
(i) no Incremental Revolving Commitment may (A) be less than $5,000,0005,000,000 (unless otherwise agreed by the Administrative Agent in its Permitted Discretion) or (B) increase any Initial Peak Season Commitment or the FILO Revolving Sublimit,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless except (i) if its rights and interests are adversely affected in any material respectrespect or (ii) if otherwise expressly set forth in this Section 2.22) or any other agent or arranger; provided that, unless otherwise consented to by the Administrative Agent, the terms of the Incremental FILO Revolving Facility or the Additional European Incremental Revolving Facility shall be administratively feasible to the Administrative Agent (as determined by the Administrative Agent in good faith);
(iv) other than in the case of the Incremental FILO Revolving Facility (the terms of which shall be governed by clause (b) below) or the Additional European Incremental Revolving Facility (the terms of which shall be governed by clause (c) below), the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees);
(v) except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;; and
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital, general corporate purposes and any transactions or other purpose not prohibited by this Agreement; and
Agreement (vii) at no time shall there be more than three separate Maturity Dates subject to any limitations set forth in effect with respect to any Incremental Revolving Facilities and any other Additional Revolving Facility at any timeAmendment).
(b) The Lead Borrower may, at any time from and after the FILO Revolving Sublimit Termination Date, on one occasion deliver a written request to the Administrative Agent (whereupon the Administrative Agent may promptly deliver a copy of such request to each of the Lenders) pursuant to an Incremental Revolving Facility Amendment to establish Incremental Revolving Commitments may be provided by any existing Lenderin the form of a separate “first-in, or by any other lender (other than any Disqualified Institution) who would be permitted last-out” Class in relation to become a Lender (including any required consents) under Section 9.05(b) the Initial Revolving Facility (any such Class, a “Incremental FILO Revolving Facility”) in an aggregate principal amount not to exceed the Incremental FILO Cap, with interest rate margins, rate floors, upfront fees, original issue discount or similar fees, in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Rate of other lender being called an “Additional Revolving Lender”)Loans) between the Lead Borrower and the Lenders providing the Incremental FILO Revolving Facility; provided that:
(i) (A) as between (x) the Initial Revolving Facility (including the FILO Revolving Sublimit, but excluding, for the avoidance of doubt, the Incremental FILO Revolving Facility) and (y) the Incremental FILO Revolving Facility, all proceeds from the liquidation or other realization of the North American Collateral securing the Initial Revolving Facility or application of funds shall be applied, first to Secured Obligations owing under, or with respect to, the Initial Revolving Facility (including Obligations in respect of FILO Revolving Loans, the Secured Banking Services Obligations and the Secured Hedging Obligations, but excluding, for the avoidance of doubt, the Incremental FILO Revolving Facility) and second to the Incremental FILO Revolving Facility and (B) as between (x) the Initial Revolving Facility (including, for the avoidance of doubt, the FILO Revolving Sublimit and the Incremental FILO Revolving Facility) and (y) the Additional European Incremental Revolving Facility, all proceeds from the liquidation or other realization of the North American Collateral securing the Initial Revolving Facility or application of funds shall be applied, first to Secured Obligations owing under, or with respect to, the Initial Revolving Facility (including, for the avoidance of doubt, Obligations in respect of FILO Revolving Loans, the Secured Banking Services Obligations, the Secured Hedging Obligations and the Incremental FILO Revolving Facility) and second to the Additional European Incremental Revolving Facility;
(ii) the Borrowers may not prepay Revolving Loans under the Incremental FILO Revolving Facility or terminate or reduce the commitments in respect thereof at any time that other Revolving Loans (including Swingline Loans), unreimbursed LC Disbursements and/or Letters of Credit (unless all amounts available to be drawn thereunder are cash collateralized in a manner satisfactory to the Administrative Agent), in each case in respect of the Initial Revolving Facility, are outstanding;
(iii) the Required Lenders (calculated as excluding the Incremental FILO Revolving Facility) shall, subject to the terms of the ABL Intercreditor Agreement (in the case of US Collateral other than ABL Exclusive Collateral), control exercise of remedies in respect of the Collateral securing the Initial Revolving Facility;
(iv) no changes affecting the priority status of the Initial Revolving Facility (excluding, for the avoidance of doubt, the Incremental FILO Revolving Facility) vis-à-vis the Incremental FILO Revolving Facility may be made without the consent of the Required Lenders under the Initial Revolving Facility;
(v) the final maturity of the Incremental FILO Revolving Facility shall not be earlier than the Latest Maturity Date of the Initial Revolving Facility (excluding, for the avoidance of doubt, the Incremental FILO Revolving Facility) at the time of the establishment of the Incremental FILO Revolving Facility;
(vi) the Incremental FILO Revolving Facility (A) shall have no borrowers other than the Borrowers under the Initial Revolving Facility (excluding, for the avoidance of doubt, the Incremental FILO Revolving Facility), (B) shall not be guaranteed by any Person that is not a Guarantor under such Initial Revolving Facility and (C) shall not be secured by any property other than the Collateral securing such Initial Revolving Facility;
(vii) no more than one Class of an Incremental FILO Revolving Facility may be outstanding at any time; and
(viii) except as otherwise set forth in this clause (b), the terms of the Incremental FILO Revolving Facility shall not be materially less favorable to the Borrowers than the terms of the Initial Revolving Facility (excluding, for the avoidance of doubt, the Incremental FILO Revolving Facility) unless such terms only apply after the Latest Maturity Date of such Initial Revolving Facility or are added for the benefit of such Initial Revolving Facility (including, without limitation, the inclusion of any additional financial or other material covenant) or are reasonably satisfactory to the Administrative Agent in its Permitted Discretion; provided however, that the sum of the advance rates with respect to (A) the items included in the Borrowing Base for the Incremental FILO Revolving Facility and any Issuing Bank (B) the items included in the Borrowing Base for the Initial Revolving Facility (excluding, for the avoidance of doubt, the Incremental FILO Revolving Facility) shall have consented not collectively exceed 100% of the North American Eligible Accounts, North American Eligible Inventory, North American Eligible In-Transit Inventory and Qualified Cash (as each such consent not to be unreasonably withheld or delayed) to term is defined in the relevant Additional documentation governing the Incremental FILO Revolving Lender’s provision Facility), in each case, in respect of the Initial Revolving Facility (excluding, for the avoidance of doubt, the Incremental FILO Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving LenderFacility).
(c) Each Lender or Additional Revolving Lender providing The Lead Borrower may, at any time, on one occasion deliver a portion written request to the Administrative Agent (whereupon the Administrative Agent may promptly deliver a copy of any such request to each of the Lenders) pursuant to an Incremental Revolving Commitment Facility Amendment to establish Incremental Revolving Commitments in the form of a separate Class of Revolving Loans (any such Class, a “Additional European Incremental Revolving Facility”) in an aggregate principal amount not to exceed the Incremental European Cap; provided that:
(i) the Lead Borrower shall designate one Wholly-Owned Restricted Subsidiary of the Lead borrower as an additional Borrower (together with any additional co-borrowers designated pursuant to clause (A)(y) below, each, an “Additional European Borrower”) under the Additional European Incremental Revolving Facility; provided that, (A) the Additional European Borrower shall (x) be organized under the laws of an Additional European Eligible Legal Jurisdiction, (y) be permitted to designate one or more of its Wholly-Owned Restricted Subsidiaries organized under the laws of such Additional European Eligible Legal Jurisdiction as co-borrowers under the Additional European Incremental Revolving Facility and (z) execute and deliver deliver, together with each such co-borrower, a joinder to this Agreement and the other applicable Loan Documents pursuant to documentation reasonably satisfactory to the Administrative Agent in its Permitted Discretion and (B) the Additional European Incremental Revolving Facility shall have no borrowers other than the Additional European Borrowers;
(ii) the final maturity of the Additional European Incremental Revolving Facility shall not be earlier than the Latest Maturity Date of the Initial Revolving Facility (including, for the avoidance of doubt, the Incremental FILO Revolving Facility) at the time of the establishment of the Additional European Incremental Revolving Facility;
(iii) (A) the obligations of each Additional European Borrower under the Additional European Incremental Revolving Facility shall be guaranteed by (1) each of the other Additional European Borrowers (if any), (2) to the extent required by the Lenders providing the Additional European Incremental Revolving Facility, certain other Wholly-Owned Restricted Subsidiary of the Lead Borrower organized under the laws of one or more jurisdictions outside the United States and Canada (subject to local law prohibitions, requirements and limitations to be agreed between the Lead Borrower, the Administrative Agent and the Lead Borrower all Lenders providing the Additional European Incremental Revolving Facility) and (3) each North American Loan Party (each such documentation Person under this clause (including A), an “Additional European Facility Guarantor”), (B) the relevant Additional European Incremental Revolving Facility Amendment or an amendment to any other Loan Document) as may shall be reasonably required secured by a First Priority, perfected Lien in favor of the Administrative Agent to evidence on substantially all of the property and effectuate such Incremental Revolving Commitment. On assets of the effective date of such Incremental Revolving Commitment, Additional European Borrowers and each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent European Facility Guarantor, subject to local law prohibitions, requirements and limitations to be agreed between the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable requestLead Borrower, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, and the Lenders providing the Additional European Incremental Revolving Facility and (iiC) the Administrative Agent Additional European Incremental Revolving Facility shall have receivednot be secured by any property or assets securing the Initial Revolving Facility (including, from each for the avoidance of doubt, the Incremental FILO Revolving Facility);
(iv) the borrowing base with respect to the Additional European Incremental Revolving Lender, an administrative questionnaire, provided to such Additional Revolving Lender by the Administrative Agent Facility (the “Administrative QuestionnaireEuropean Borrowing Base”) shall have borrowing base criteria and such other documents advance rates in respect thereof as it shall reasonably and customarily require from such determined by the Additional Revolving LenderEuropean Borrowers, (iii) the Administrative Agent and the Lenders shall have received all fees required to be paid in respect of such providing the Additional European Incremental Revolving Facility or Incremental Revolving Loans Facility, subject to modification for local law prohibitions, requirements and limitations and customary practices in the applicable Additional European Eligible Legal Jurisdiction (iv) in each case, as determined by the Lead Borrower and the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
in its Permitted Discretion); provided that, (A) certifying such advance rates shall be no higher than the advance rates applicable to North American Eligible Accounts, North American Eligible Inventory and attaching a copy of Qualified Cash under the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving LoansNorth American Borrowing Base, and
(B) to the extent applicableagreed by the Additional European Borrowers, certifying that the condition set forth in clause (a)(v) above has been satisfied.
(i) Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed 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 (e).
(f) The Lenders hereby irrevocably authorize such amendments to this Agreement and the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lenders providing the Additional European Incremental Revolving Facility, the European Borrowing Base may have advance rates that fluctuate based on “peak season” and “off-peak season” periods, (C) the European Borrowing Base may include Accounts sold to the Additional European Borrowers by one or more Wholly-Owned Restricted Subsidiaries of the Lead Borrower organized under the laws of one or more jurisdictions outside the United States and Canada and (D) the European Borrowing Base may, subject to enter into such technical amendments as may advance rates, eligibility criteria and other terms and conditions to be necessary or appropriate in the reasonable opinion of agreed by Additional European Borrowers, the Administrative Agent and the Lenders providing the Additional European Incremental Revolving Facility, include Inventory and Accounts of one or more Wholly-Owned Restricted Subsidiaries of the Lead Borrower organized under the laws of one or more jurisdictions outside the United States and Canada;
(v) in connection with the establishment of such new tranches the Additional European Incremental Revolving Facility, Section 9.02 may be amended pursuant to an Incremental Revolving Facility Amendment to provide that modifications to the European Borrowing Base (or sub-tranches or any component thereof) and/or to the maintaining conditions precedent to extensions of such single tranchecredit under the Additional European Incremental Revolving Facility shall be, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding anything case, subject to the contrary in this Section 2.22 or in any other provision consent of any Loan Document, if the proceeds on Lenders under the date of effectiveness of any Additional European Incremental Revolving Facility are intended to be applied to finance an acquisition and (or any sub-set thereof), rather than the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof Required Lenders;
(vi) there shall be subject to customary “SunGard” no pro rata borrowing, payment or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary and shall, to extent applicable, be subject in all respects to Section 1.11.commitment reducti
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