Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 5 contracts

Sources: Joinder Agreement (First Data Corp), Joinder Agreement (First Data Corp), Joinder Agreement (First Data Corp)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to Administrative ~~Agent~~ Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount, when taken together with the principal amount of Permitted Other Indebtedness outstanding at such time pursuant to Section 10.1(x)(i), not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). ~~Each such notice shall specify~~ In connection with the ~~date (each~~incurrence of any Indebtedness under this Section 2.14, ~~an “Increased Amount Date”) on which~~ at the request of the Administrative Agent, the Borrower ~~proposes~~ shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be ~~effective, which~~ in reasonable detail and shall ~~be a date not less than ten Business Days after~~ provide the ~~date on which such notice is delivered to the Administrative Agent~~calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as ~~applicable;~~ applicable (or, in connection with a Limited Condition Transaction, at the time of such Increased Amount Date or, if earlier, at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 11.1 or Section 11.5) and (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Additional Revolving Credit ~~Commitments pursuant to clause (iii)~~ Loans shall be designated a separate Series of ~~the definition~~ Additional Revolving Credit Loans for all purposes of ~~Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~this Agreement. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Credit Loans or Revolving Credit Commitments, as applicable, to such Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the ~~2018B Second~~ Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that clauses (~~or in the case~~ i) and (ii) shall not apply to up to $90,000,000 of New Term Loans as elected by the Borrower; provided, further, that ~~are Refinancing Commitments~~with respect to any New Term Loan, ~~no shorter than~~ only during the period commencing on the Closing Date and ending on the day before the date that is 18 months after the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans, respectively, in respect of the Initial Term Loans ~~being refinanced) and (iii) all other terms applicable~~ by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50%. (e) The terms and provisions of ~~each Series that differ from~~ any New Revolving Credit Commitments and the ~~existing Term~~ related New Revolving Credit Loans shall be ~~reasonably acceptable~~ identical to the ~~Administrative Agent (as evidenced~~ Class of Commitments and related Revolving Credit Loans subject to increase by ~~its execution of~~ such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that may be agreed to among the ~~applicable Joinder Agreement)~~Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. The terms and provisions of the ~~New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020~~ Additional Revolving Credit Loans and ~~the 2020~~ Additional Revolving Credit ~~Commitments~~Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that ~~New~~ (i) the applicable maturity date for the Additional Revolving Credit ~~Commitments may provide for (a) a commitment termination date that is later~~ Commitment of each Series shall be no earlier than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit ~~Commitments being refinanced~~Maturity Date; (ii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and ~~(b) fees and pricing as agreed between~~ amortization schedule applicable to any Additional Revolving Credit Loans shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder; and (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Additional Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Additional Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any ~~time~~ time, and from time to ~~time~~ time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be ~~identical to the Term Loans of the Existing Term Loan Class from which they are~~ on terms to be ~~converted except~~ agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below) ), and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any ~~New~~ Incremental Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments) (a “Revolving Credit Extension Request”~~Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which ~~terms~~ shall be ~~identical~~ on terms to ~~those applicable to~~ be agreed between the ~~Existing~~ Borrower and the Lender providing Extended Revolving Credit ~~Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except~~ Commitments; provided, however, that (x) ~~all or any of~~ the scheduled final maturity ~~dates of such Extended Revolving Credit Commitments may~~ date shall be ~~delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments~~extended, and (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit ~~Commitments~~ Commitments”) and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment), in each case, to the extent provided in the applicable Extension ~~Amendment; provided that, notwithstanding~~ Amendment Notwithstanding anything to the contrary in this Section ~~2.14(f)~~ 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any ~~Old~~ Original Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Original Revolving Credit Commitments and (2) ~~assignments and participations of~~ no Extended Revolving Credit Commitments may be optionally permanently prepaid and ~~Extended Revolving Credit Loans shall be governed by~~ terminated prior to the ~~same assignment and participation provisions applicable to~~ date on which the Specified Existing Revolving Credit Commitments from which they were converted is permanently repaid in full and terminated, except in accordance with the ~~Revolving Credit Loans related to such Commitments set forth in~~ last sentence of Section ~~13.6~~5.1(a). No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 4 contracts

Sources: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)

Incremental Facilities. ~~(a) The~~ Borrower may by written notice to ~~Administrative~~ Syndication Agent elect to request (A) prior to the Revolving Credit Commitment Maturity Date, an increase to the existing US Revolving Credit Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (B) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $100,000,000 in the aggregate and not less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent and Syndication Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $100,000,000 and all such New Revolving Loan Commitments and New Term Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to Syndication Agent and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or other Person that is an eligible assignee pursuant to Section 14.6(b) (each, a “New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to whom Borrower proposes any ~~Person (other than a natural person)~~ portion of such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Borrower shall first approach the Lenders to provide all ~~or a portion~~ of the New Revolving Loan ~~Commitments~~Commitments or New Term Loan Commitments prior to approaching any other Person that is an eligible assignee pursuant to Section 14.6(b); provided further that any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 shall be satisfied; (~~iii~~3) Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Sections 10.9 and 10.10 as of the last day of the most recently ended fiscal quarter after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (4) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by ~~the Borrower~~ Borrower, Syndication Agent and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(b); (iv5) ~~the~~ Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; and (v6) ~~the~~ Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) . On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with US Revolving Credit Commitments shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with US Revolving Credit Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the US Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such US Revolving Credit Loans will be held by existing Lenders with US Revolving Credit ~~Lenders~~ Loans and New Revolving Loan Lenders ratably in accordance with their US Revolving Credit Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the US Revolving Credit Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a US Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a US Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto~~. (c)~~ . On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the Borrower~~ Company (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. . Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof (dy) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any Lender with US Revolving Credit Loans, the respective interests in such Lender’s Revolving Credit Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes~~ the Term Loans to the extent they are secured by the Collateral on a pari passu basis with the Term Loans. The terms and provisions of the ~~existing Initial Term~~ New Revolving Loans shall be identical to the US Revolving Credit Loans~~; provided that~~ . In any event (i) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Revolving Credit Loans and the Terms Loans, (ii) the applicable New Term Loan Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ final maturity of the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term~~ Revolving Credit Loans and the ~~existing~~ Term ~~Loans shall be identical~~Loans, (iiiii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New Term Loans of each Series shall be determined by ~~the~~ Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms interest rate margin applicable to the New Term Loans shall not be greater than the highest interest rate that may, under any circumstances (including, without limitation, any issuance at a discount or as a result of ~~each Series that differ from~~ the ~~existing~~ payment of any fees), be payable with respect to the Term Loans ~~shall be reasonably acceptable~~ plus 0.25% per annum unless the interest rate margin with respect to the ~~Administrative Agent (~~Term Loans is increased so as ~~evidenced by its execution of~~ to be equal to, or be 0.25% per annum lower than, the interest rate margin applicable ~~Joinder Agreement). The~~ to the New Term Loans, provided that such limitation shall not apply to the extent such New Term Loans are junior in collateral rights to the Term Loans, in which case customary terms ~~and~~ shall apply consistent with the other provisions of ~~the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans~~ this Agreement and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) then prevailing market conditions. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Syndication Agent and Administrative Agent, to effect the provision of this Section ~~2.14~~2.15. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 4 contracts

Sources: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)

Incremental Facilities. (a) The Borrower may by written notice to the Administrative Agent elect to request prior to the ~~establishment of one or more~~ Revolving Commitment Termination Date, an increase to the existing Loan Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term~~ Revolving Loan Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $50,000,000 in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually in the case of the first such New Revolving Loan Commitment and not less than $5,000,000 individually in the case of each subsequent New Revolving Loan Commitment (or or, in each case, such lesser amount ~~as (x) may~~ which shall be approved by the Administrative ~~Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date~~Agent). Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Revolving Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ seven Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower~~ Agent (or such shorter period as the Administrative Agent may ~~approach any~~ agree) and (ii) the identity of each Lender or ~~any~~ other Person that is an eligible assignee under Section 11.04(b) (~~other than~~ which, if not a ~~natural person~~Lender, an Approved Fund or an Affiliate of a Lender), shall be reasonably satisfactory to the Administrative Agent and the Issuing Banks (in each case, not to be unreasonably withheld or delayed) (each, a “New Revolving Loan Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of such New Revolving Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any ~~Lender offered or~~ Person approached to provide all or a portion of ~~the~~ any New Revolving Loan Commitments may elect or ~~decline,~~ decline to participate in its sole discretion~~, to provide a~~ . Such New ~~Loan Commitment. In each case, such New~~ Revolving Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (~~i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii~~1) both before and after giving effect to ~~the making of any Series of New Term Loans or~~ such New Revolving ~~Loans~~Loan Commitments, as applicable, each of the conditions set forth in Section 7 4.02 (with the exception of Section 4.02(a)) shall be satisfied; , including, for the avoidance of doubt, the making of the representations and warranties contained in Section 3.04(b) hereof (~~iii~~provided that, in the case of any New Revolving Loan Commitments the proceeds of which are to be used primarily to consummate a Limited Conditions Acquisition substantially concurrently with the effectiveness of such New Revolving Loan Commitments, to the extent agreed to by the Borrower and the Lenders providing such New Revolving Loan Commitments, (x) the only representations and warranties the accuracy of which shall be a condition to the effectiveness of such New Revolving Loan Commitments shall be ~~effected pursuant to one or more Joinder Agreements executed~~ the Specified Representations and ~~delivered by~~ the ~~Borrower and Administrative Agent~~Specified Acquisition Agreement Representations, and ~~each of which shall be recorded in~~ (y) the ~~Register and shall be subject to the requirements~~ condition set forth in Section ~~5.4(d~~4.02(c) shall be tested on the date the acquisition agreement with respect to such Limited Conditions Acquisition is signed (provided that, on the date such New Revolving Loan Commitments are effective, no Event of Default under Section 9.01(a), (b), (g), (h) or (i) shall exist or result therefrom)); (iv2) any New Revolving Loan Commitments and New Revolving Loans made pursuant hereto shall be on the ~~Borrower shall make any payments required~~ same terms as the existing Revolving Commitments and Loans made pursuant thereto (including, for the avoidance of doubt, with respect to maturity date and pricing), as set forth in and pursuant to ~~Section 2.11~~ the Loan Documents, with such additional amendments thereto as may be necessary or appropriate in ~~connection with~~ the judgment of the Administrative Agent to effect such New Revolving Loan Commitments, ~~as applicable;~~ and (v3) as a condition to the effectiveness of such New Revolving Loan Commitments, the Borrower shall deliver or cause to be delivered any customary legal opinions or other ~~documents~~ certificates reasonably requested by the Administrative Agent in connection with any such transaction. ~~Any New Term Loans made on an Increased Amount Date shall be designated,~~ Each joinder agreement with a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan ~~Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality~~ Lender not previously a Lender shall ~~apply~~ be subject to the ~~effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses~~ consent (~~i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used~~ not to ~~replace~~ be unreasonably withheld or ~~refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii~~delayed) of the ~~definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~Issuing Banks. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the Lenders with Revolving ~~Credit Commitments~~ Exposure shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with Revolving Credit Commitments~~Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the ~~Revolving Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the Revolving Credit~~ such Loans will be held by existing ~~Revolving Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Commitments, (bii) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each ~~Loan~~ loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a ~~Revolving Credit Loan and~~ Loan, (ciii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (iiiv) each existing Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New ~~Term~~ Revolving Loan Lender, and each New Revolving Loan Lender ~~of any Series shall become a Lender hereunder with respect~~ will automatically and without further act be deemed to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall behave assumed, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of ~~the Term Loans~~ such Lender’s participations hereunder in outstanding Letters of ~~any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of~~ Credit such ~~Term Loans (any such Term Loans which have been so converted~~that, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice after giving effect to each deemed Assignment and Assumption of participations, all of the ~~Lenders~~ Lenders’ (including each New Revolving Loan Lender) participations hereunder in Letters of ~~the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which~~ Credit shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made held on a pro rata basis ~~with all other Old Revolving Credit~~ on the basis of their respective Loan Commitments ~~and~~ (~~2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by~~ after giving effect to any increase in the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments Loan Commitment pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under this Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co2.23

Appears in 3 contracts

Sources: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative ~~Agent~~ Agent, elect to request (x) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”) and/or (y) ~~increases in~~ prior to the Revolving Credit Maturity Date, an increase to the existing Revolving Credit Commitments (any such increase, the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by in each case to effect the incurrence of secured Indebtedness permitted to be incurred pursuant to Section 6.01(p) in an ~~aggregate~~ amount not in excess of (and not in duplication of) the ~~Maximum Incremental Facilities Amount~~ amount of secured Indebtedness permitted to be incurred pursuant to Section 6.01(p) in the aggregate and not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between the ~~Maximum Incremental Facilities Amount~~ amount of secured Indebtedness permitted to be incurred pursuant to Section 6.01(p) and all such New Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $5,000,000 in excess of that amount (it being understood that any Indebtedness incurred pursuant to this Section 2.25 shall correspondingly reduce the amount of Indebtedness permitted to be incurred pursuant to Section 6.01(p), and vice versa). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent~~. The~~ ; provided that the Borrower ~~may approach any Lender or any Person (other than~~ shall first offer the Lenders, on a ~~natural person)~~ pro rata basis, the opportunity to provide all ~~or a portion~~ of the New Loan ~~Commitments~~Commitments prior to offering such opportunity to any other Person that is an eligible assignee pursuant to Section 9.04(b); ~~provided~~ provided, further, that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. ~~In each case, such~~ Such New Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Credit Loans, each of the conditions set forth in Section 7 4.01 shall be satisfied; (iii) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Sections 6.13 and 6.14 as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Section 5.04(a) and 5.04(b) after giving effect to such New Loan Commitments and any Investment to be consummated in connection therewith; (iv) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the ~~Register and shall be subject to the requirements set forth in Section 5.4(d)~~Register; (ivv) the Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.16 in connection with the New Loan Commitments, as applicable; ~~and~~ (vvi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction; and (vii) the requirements set forth in Section 9.19 shall have been satisfied. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated as a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower~~ Agreement and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving other Credit ~~Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~Documents. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Loan~~ Credit Lender”) and each of the New Revolving ~~Loan~~ Credit Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving Credit Loans will be held by existing Lenders with Revolving Credit ~~Lenders~~ Loans and New Revolving ~~Loan~~ Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (bii) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each ~~Loan~~ loan made thereunder (a “New Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (ciii) each New Revolving ~~Loan~~ Credit Lender shall become a Lender with respect to ~~the~~ its New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a ~~Loan~~ loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to ~~the~~ its New Term Loan Commitment of such Series and the New Term Loans of such Series made by such Lender pursuant thereto. (d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Series of New Term Loan Commitments and New Term Loan Lenders of such Series or the New Revolving Credit Commitments and New Revolving Credit Lenders, as applicable, and (ii) in the case of each notice to any Lender with Revolving Credit Loans, the respective interests in such Lender’s Revolving Credit Loans subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes of~~ the ~~existing Initial~~ Term Loans; provided, however, that (i) the New Term Loan Maturity Date for any Series shall be determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in the applicable Joinder Agreement; provided that (ix) the Weighted Average Life to Maturity of all New Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Term Loans and (y) the applicable New Term Loan Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ final maturity of the Term Loans ~~being refinanced)~~ and ~~mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical,~~ (ii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable ~~new~~ New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Credit Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.25. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 3 contracts

Sources: Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG Energy, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative Agent prior to the Revolving Credit Termination Date, elect to ~~request~~ request, an increase to the ~~establishment of one or more~~ existing Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term Loan~~ Commitments”) ~~and/or (y~~to effect the incurrence of secured Indebtedness permitted to be incurred pursuant to Section 6.01(d) ~~increases~~ in ~~Revolving Credit~~ an amount not to exceed $500,000,000 in the aggregate. New Commitments ~~(the “New Revolving Credit Commitments” and, together~~ shall be secured pari passu with the ~~New Term Loan Commitments,~~ existing Secured Obligations pursuant to the ~~“New Loan Commitments”), by an aggregate amount~~ Intercreditor Agreement and shall not ~~in excess of the Maximum Incremental Facilities Amount in the aggregate and not~~ be less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative Agent or ~~(y)~~ such lesser amount which shall constitute the difference between the ~~Maximum Incremental Facilities Amount~~ amount of secured Indebtedness permitted to be incurred pursuant to (i) Section 6.01(c) and this Section 2.21 and (ii) all ~~such~~ New ~~Loan~~ Commitments obtained ~~on or~~ prior to such date)) and integral multiples of $1,000,000 in excess of such amount. Each such notice shall specify the date (each, an “Increased ~~Amount~~ Commitment Date”) on which the Borrower proposes that the New ~~Loan~~ Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent~~. The~~ ; provided that the Borrower ~~may approach any Lender or any Person (other than~~ shall first offer the Lenders, on a ~~natural person)~~ pro rata basis, the opportunity to provide all ~~or a portion~~ of the New ~~Loan Commitments~~Commitments prior to offering such opportunity to any other Person that is an eligible assignee pursuant to Section 9.04(b); ~~provided~~ provided, further, that any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Commitment. ~~In each case, such~~ Such New ~~Loan~~ Commitments shall become effective as of ~~the applicable~~ such Increased ~~Amount~~ Commitment Date; provided that (i) no Default or Event of Default shall exist on such Increased ~~Amount~~ Commitment Date before or after giving effect to such New ~~Loan~~ Commitments, as applicable; (ii) ~~both before~~ the Borrower and its Subsidiaries shall be in pro forma compliance with each of the Financial Covenants as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Section 5.05(a) and 5.05(b) after giving effect to ~~the making of~~ such New Commitments and any ~~Series of New Term Loans or New Revolving Loans, each of the conditions set forth~~ Investment to be consummated in ~~Section 7 shall be satisfied~~connection therewith; (iii) the New ~~Loan~~ Commitments shall be subject to the same terms and conditions as the existing Commitments under this Agreement (except that upfront fees paid to Lenders providing New Commitments may be less than the upfront fees that were paid to the existing Lenders on the Signing Date); (iv) the New Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the ~~Register and shall be subject to the requirements set forth in Section 5.4(d)~~Register; (ivv) the Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.16 in connection with the New ~~Loan~~ Commitments, as applicable; ~~and~~ (vvi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series~~ ; (~~a “Series”~~vii) ~~of New Term Loans for all purposes of this Agreement; provided that (A) if~~ the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions requirements set forth in ~~clauses (i), (ii) and if applicable, (v), above~~ Section 9.17 shall have been satisfied; and (Bviii) ~~if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of~~ the ~~definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions~~ representations and warranties set forth in ~~clauses~~ each Loan Document shall be true and correct in all material respects (iexcept to the extent that such representations and warranties are qualified as to materiality, in which case they shall be true and correct in all respects) on and as of such Increased Commitment Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (iior true and correct in all respects, as provided in the parenthetical above) ~~above shall not apply~~on and as of such earlier date. (b) On any Increased ~~Amount~~ Commitment Date on which New ~~Revolving Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the Lenders with ~~Revolving Credit~~ Commitments shall assign to each Lender with a New ~~Revolving Credit~~ Commitment (each, a “New ~~Revolving Loan~~ Lender”) and each of the New ~~Revolving Loan~~ Lenders shall purchase from each of the Lenders with ~~Revolving Credit~~ Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the ~~Revolving Credit~~ Loans outstanding on such Increased ~~Amount~~ Commitment Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the Revolving Credit~~ such Loans will be held by existing ~~Revolving Credit~~ Lenders with Loans and New ~~Revolving Loan~~ Lenders ratably in accordance with their ~~Revolving Credit~~ Commitments after giving effect to the addition of such New ~~Revolving Credit~~ Commitments to the ~~Revolving Credit~~ Commitments, (bii) each New ~~Revolving Credit~~ Commitment shall be deemed for all purposes a ~~Revolving Credit~~ Commitment and each ~~Loan~~ loan made thereunder ~~(a “New Revolving Loan”)~~ shall be deemed, for all purposes, a ~~Revolving Credit~~ Loan and (ciii) each New ~~Revolving Loan~~ Lender shall become a Lender with respect to ~~the~~ its New ~~Revolving Credit~~ Commitment and all matters relating thereto. (c) ~~On any~~ The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased ~~Amount~~ Commitment Date ~~on which any~~ and in respect thereof the New ~~Term Loan~~ Commitments ~~of any Series are effective,~~ and New Lenders and the respective interests in such Lender’s Loans subject to the ~~satisfaction of the foregoing terms and conditions,~~ assignments contemplated by clause (~~i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”~~b) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant theretothis Section 2.21. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Collateral Agent, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.21. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 3 contracts

Sources: Credit Agreement (Enexus Energy CORP), Credit Agreement (Entergy Corp /De/), Credit Agreement (Enexus Energy CORP)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date ~~(or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced)~~ and mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the existing Initial Term Loans shall be identical, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ Initial Term Loans ~~(or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced)~~ and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Initial Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 3 contracts

Sources: Credit Agreement (First Data Corp), Credit Agreement (First Data Corp), Credit Agreement (First Data Corp)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Additional Revolving Credit ~~Commitments pursuant to clause (iii)~~ Loans shall be designated a separate Series of ~~the definition~~ Additional Revolving Credit Loans for all purposes of ~~Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~this Agreement. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ then existing Initial Term Loans, (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans ~~(or~~ shall be determined by the Borrower and the Lenders thereunder; provided that solely in the case of New Term Loans ~~that are Refinancing Commitments, no shorter than that~~ incurred prior to the 18 month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans in respect of such New Term Loans ~~being refinanced) and (iii) all other terms applicable~~ exceeds the Effective Yield for LIBOR Loans in respect of the then existing Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans in respect of the New Term Loans ~~of each Series that differ from~~ minus 0.50%; and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and New~~ Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the ~~2020~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the ~~2020~~ Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments; , (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that ~~New~~ the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may ~~provide for (a)~~ constitute a ~~commitment termination date that is later than~~ separate Class or Classes, as the ~~commitment termination date~~ case may be, of Commitments from the ~~2020~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (~~or in~~ viii) the ~~case~~ pricing, fees, maturity and other immaterial terms of ~~New~~ the Additional Revolving Credit ~~Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced)~~ Loans may be different and ~~(b) fees and pricing as agreed between~~ shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any ~~New~~ Incremental Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 3 contracts

Sources: First Lien Credit Agreement (National Vision Holdings, Inc.), First Lien Credit Agreement (National Vision Holdings, Inc.), First Lien Credit Agreement (National Vision Holdings, Inc.)

Incremental Facilities. ~~(a)~~ The Borrower may by written notice to the Administrative Agent elect to ~~request~~ request, prior to the ~~establishment of one or more~~ Maturity Date, an increase to the existing Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term Loan~~ Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $25,000,000 in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative ~~Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ Agent), and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (B) the identity of each Lender or other Person that is an eligible assignee pursuant to Section 14.6(b) (each, a “New Lender”) to whom the Borrower proposes any ~~Person (other than a natural person)~~ portion of such New Commitments be allocated and the amounts of such allocations; provided that the Borrower shall first approach the Lenders to provide all ~~or a~~ of the New Commitments in accordance with their Applicable Percentages (excluding for this purpose the Commitment of any Lender that declines to provide any portion of the New ~~Loan~~ Commitments) prior to approaching any other Person that is an eligible assignee pursuant to Section 14.6(b) (and no such Person shall be offered to provide the New Commitments on terms (including with respect to upfront fees and other economic terms) that are more favorable to such Person than the terms offered to the existing Lenders) and no Lender shall provide a New Commitment unless the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented thereto; provided further that any Lender ~~offered or~~ approached to provide all or a portion of the New ~~Loan~~ Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Commitment. ~~In each case, such~~ Such New ~~Loan~~ Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no ~~Default or Event of~~ Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments~~, as applicable~~; (~~ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~2) the New ~~Loan~~ Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrower, the Lender providing the New Commitment and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(c); (iv3) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New ~~Loan~~ Commitments~~, as applicable~~; and (v4) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount ~~Date on which New Revolving Credit Commitments are effected~~Date, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with ~~Revolving Credit~~ Commitments shall assign to each ~~Lender with a~~ of the New ~~Revolving Credit Commitment (each~~Lenders, ~~a “New Revolving Loan Lender”)~~ and each of the New ~~Revolving Loan~~ Lenders shall purchase from each of the Lenders with ~~Revolving Credit~~ Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving Credit Loans will be held by existing Lenders with Revolving Credit ~~Lenders~~ Loans and New ~~Revolving Loan~~ Lenders ratably in accordance with their ~~Revolving Credit~~ respective Commitments after giving effect to the addition of such New ~~Revolving Credit~~ Commitments to the ~~Revolving Credit~~ Commitments, (b) each New ~~Revolving Credit~~ Commitment shall be deemed for all purposes a ~~Revolving Credit~~ Commitment and each Loan made thereunder ~~(a “New Revolving Loan”)~~ shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New ~~Revolving Loan~~ Lender shall become a Lender with respect to the New ~~Revolving Credit~~ Commitment and all matters relating thereto~~. (c) On any~~ . The Administrative Agent shall notify the Security Agents and Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date ~~on which any~~ and in respect thereof (y) the New ~~Term Loan~~ Commitments ~~of any Series are effective~~and the New Lenders and (z) the respective interests in such Lender’s Revolving Credit Loans, in each case subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined assignments contemplated by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement)this Section. The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement (including with respect to the interest rates and fees payable with respect to the New Commitment only) and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section ~~2.14~~2.15. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 3 contracts

Sources: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective~~, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided ~~that~~ that, (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or an investment, no Event of Default under Section 11.1 or Section 11.4) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d);~~ 5.4(e) and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such ~~Series,~~ Series and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ as determined by the ~~existing Initial Term Loans~~Borrower; provided ~~that~~ that, (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees and amortization schedule applicable to any New Term Loans shall be determined by the Borrower; provided that (or x), the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the Initial Term Loans and (y) solely in the case of New Term Loans incurred prior to the date that ~~are Refinancing Commitments~~is 24 months following the Closing Date, ~~no shorter than that~~ if the Applicable LIBOR Margin in respect of such New Term Loans exceeds the Applicable LIBOR Margin in respect of the Initial Term Loans ~~being refinanced~~by more than 0.50%, the Applicable LIBOR Margin in respect of the Initial Term Loans shall be adjusted to be equal to the Applicable LIBOR Margin in respect of the New Term Loans minus 0.50%; provided further that in determining the Applicable LIBOR Margin, (I) ~~and~~ original issue discount or upfront fees (~~iii~~which shall be deemed to constitute a like amount of original issue discount) ~~all other terms~~ paid by the applicable Borrower to the New Term Loan Lenders under the New Term Loans ~~of each Series that differ from~~ and the existing Initial Term Loans in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity, but for avoidance of doubt not including structuring, arrangement and other fees not shared with lenders generally) and (II) any amendments to the Applicable LIBOR Margin or Applicable ABR Margin in respect of the Initial Term Loans that become effective subsequent to the Closing Date but prior to the time of such New Term Loans shall also be included in such calculations; provided further that if the LIBOR Rate or ABR in respect of the New Term Loans includes a floor greater than the LIBOR or ABR floor applicable to the Initial Term Loans, such excess amount shall be equated to interest margin for purposes of determining any increase to the Applicable Margin in respect of the Initial Term Loans; and (iv) to the extent such terms and documentation are not consistent with the Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced by its execution~~ it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any New 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 ~~Joinder Agreement~~after the Latest Term Loan Maturity Date). . (e) The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the ~~2020~~ Revolving Credit ~~Commitments~~Commitments of the applicable Class; provided that the Applicable Margin applicable thereto may be increased if necessary to be consistent with that for the New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit CommitmentsLoans. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and (z) a financial maintenance covenant may be added for the benefit of any Extended Term Loans 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 Term Loan Maturity Date. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments) (a “Revolving Credit Extension Request”~~Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (xw) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) x) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A~~) and~~ ), (zy) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit ~~Commitment~~Commitment and (z) a financial maintenance covenant may be added for the benefit of any Extended Revolving Credit Loans to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Revolving Credit Loans or (2) only applicable after the Revolving Credit Termination Date, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section ~~2.14(f~~2.14(g) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any ~~Old~~ Original Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Original Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving ~~Credit~~ Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coExtensi

Appears in 3 contracts

Sources: Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (PRA Health Sciences, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to each Administrative ~~Agent~~ Agent, elect to request the establishment of one or more (x1) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”) and/or (y2) additional revolving credit and/or letter of credit facilities or increases in Revolving Credit Commitments, Letter of Credit Commitments or Extended Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), ) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the applicable Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). ~~Each such notice shall specify~~ In connection with the ~~date (each~~incurrence of any New Loan Commitments under this Section 2.14, ~~an “Increased Amount Date”) on which~~ at the request of the applicable Administrative Agent, the Borrower ~~proposes~~ shall provide to the applicable Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be ~~effective, which~~ in reasonable detail and shall ~~be a date not less than ten Business Days after~~ provide the ~~date on which~~ calculations and basis therefor and classify such ~~notice is delivered to~~ Indebtedness as being incurred under clause (a) or clause (b) of the ~~Administrative Agent~~definition of “Maximum Incremental Facilities Amount”. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with any Limited Condition Transaction, any other acquisition or investment (including any Permitted Acquisition or Investment) or repayments of Indebtedness that requires an irrevocable payment or redemption notice, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , and subject to Section 1.12, (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the applicable Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments increasing Revolving Credit Commitments or Extended Revolving Credit Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with ~~Revolving Credit~~ Commitments of the applicable Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with ~~Revolving Credit Commitments~~Commitments of such Class, at the principal amount thereof and in the applicable currency(ies), such interests in the ~~Revolving Credit~~ Loans outstanding under such Class of Commitments on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the ~~Revolving Credit~~ Loans of such Class will be held by existing ~~Revolving Credit~~ Lenders of such Class and New Revolving Loan Lenders ratably in accordance with their ~~Revolving Credit~~ Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the ~~Revolving Credit Commitments~~Commitments of such Class, (b) each such New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment or an Extended Revolving Credit Commitment, as applicable, and each Loan made thereunder (a “New Revolving Credit Loan”) shall be deemed, for all purposes, a ~~Revolving Credit~~ Loan ~~and~~ of the applicable Class, (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating ~~thereto~~thereto and (d) the terms of such New Revolving Credit Commitments (other than upfront fees) shall be identical to the existing Class; provided that the fees and Applicable Margin applicable to the existing Class of Commitments may be increased at the option of the Borrower in connection with the establishment of such New Revolving Credit Commitments. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term ~~Loans and~~ Loans, New Term Loan Commitments and New Revolving Credit Commitments (other than New Revolving Credit Commitments of the type described in Section 2.14(b)) of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) (x) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date and (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (iiy) the ~~fees, pricing and the amortization schedule~~ applicable ~~to the~~ New ~~Term Loans~~ Revolving Credit Maturity Date of each Series shall be ~~determined by~~ no earlier than the ~~Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement~~Revolving Credit Maturity Date; ~~provided that~~ (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ then existing Initial Term ~~Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and~~ Loans; (iii) ~~all other terms~~ the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to ~~the~~ any New ~~Term Loans of each Series that differ from the existing~~ Term Loans shall be ~~reasonably acceptable to the Administrative Agent (as evidenced~~ determined by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders ~~providing~~ thereunder; provided that clauses (i) and (ii) shall not apply to up to $75,000,000 of New Term Loans or Permitted Other Indebtedness as elected by the Borrower; provided, further, that, with respect to any New Term Loan incurred pursuant to clause (a)(i) of the definition of Maximum Incremental Facilities Amount that matures earlier than one year after the Initial Term Loan Maturity Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New ~~Revolving Credit Commitments~~Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50%; and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Term Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Term Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Term Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Any New Revolving Credit Commitments increasing Revolving Credit Commitments or Extended Revolving Credit Commitments of any Class shall be subject to the written consent of the Revolver Administrative Agent, each Letter of Credit Issuer, the Swingline Lender and the Borrower (such approval in each case not to be unreasonably withheld). (f) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents (including amendments in order for the New Loan Commitments, New Revolving Credit Loans or New Term Loans provided pursuant to such Joinder Agreement to be fungible with the existing Commitments or Loans of such Class, as applicable) as may be necessary or appropriate, in the opinion of the Term Administrative Agent, to effect the ~~provision~~ provisions of this Section 2.14. (i) The Borrower may at any ~~time~~ time, and from time to ~~time~~ time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Term Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in ~~paragraph~~ clause (iv) of this Section ~~2.14(f) below) and~~ 2.14(g)), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Term Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments, any Extended Revolving Credit~~ Commitments and/or any ~~New~~ Extended Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) ), be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Revolver Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments, which such request shall be offered equally to all such Lenders) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) ), except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the ~~Revolving Credit Commitment Fee Rate~~ commitment fee rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section ~~2.14(f~~2.14(g) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any ~~Old~~ Existing Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Existing Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Existing Revolving Credit Loans or Existing Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coRevolvin

Appears in 2 contracts

Sources: First Lien Credit Agreement (Focus Financial Partners Inc.), First Lien Credit Agreement (Focus Financial Partners Inc.)

Incremental Facilities. (a) The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more ~~(x)~~ additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an ~~aggregate~~ amount not in excess of the Maximum Incremental Facilities Amount in the aggregate from the Closing Date and not less than $~~100,000,000~~ 50,000,000 individually (or such lesser individual amount as ~~(x) may be approved by the Administrative Agent or (y)~~ shall constitute ~~the difference between~~ all remaining available amounts under the Maximum Incremental Facilities Amount ~~and all such New Loan Commitments obtained~~ on ~~or prior to~~ such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Term Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. In each case, such New Term Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto[Reserved]. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. Notwithstanding anything to the contrary contained herein, (x) to the extent the first $100,000,000 of the Maximum Incremental Facilities Amount, or any portion thereof, shall comprise New Term Loan Commitments to be obtained by the Borrower pursuant to this Section 2.14, such New Term Loan Commitments (and corresponding New Term Loans) shall not be permitted to be obtained hereunder unless the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, shall be no greater than 4.25 to 1.00 on the date of such incurrence (based on the Consolidated EBITDA as of the most recent Test Period); and (y) with respect to all remaining New Term Loan Commitments to be obtained by the Borrower pursuant to this Section 2.14, such New Term Loan Commitments (and corresponding New Term Loans) shall not be permitted to be obtained hereunder unless the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, shall be no greater than4.00 to 1.00 on the date of such incurrence (based on the Consolidated EBITDA as of the most recent Test Period). (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, at the option of the Borrower, identical to ~~one or more Classes of~~ the existing ~~Initial~~ Tranche B-1 Term Loans or Tranche B-2 Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Tranche B Term Loan Maturity Date ~~(or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced)~~ and mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans ~~and~~ shall be identical to those applicable to the existing Tranche B-1 Term Loans ~~shall be identical~~or Tranche B-2 Term Loans, as the case may be, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that ~~the~~ such amortization schedule shall not have a weighted average life to maturity ~~of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans~~ that ~~are Refinancing Commitments, no~~ is shorter than that of applicable to the Tranche B Term Loans ~~being refinanced)~~ in effect at that time and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Tranche B-1 Term Loans or Tranche B-2 Term Loans, as the case may be, shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Dollar General Corp), Credit Agreement (Dollar General Corp)

Incremental Facilities. (a) The Borrower ~~may by~~ may, at its option, from time to time, obtain one or more additional term loans (each, such term loan a “New Loan”) or increase the amount of the Revolving Commitments (each such increase, a “Commitment Increase”) up to an aggregate principal amount of $75,000,000, in each case upon at least four Business Days’ prior written notice to the Administrative ~~Agent elect to request~~ Agent, which notice shall specify (A) the ~~establishment~~ requested amount of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “a New Loan ~~Commitments”)~~or Commitment Increase, ~~by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually~~ (~~or such lesser amount as (x~~B) ~~may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all~~ whether such New Loan ~~Commitments obtained on or prior~~ is intended to ~~such date). Each such notice shall specify the~~ be fungible with any then-existing Term Loans and (C) date ~~(each, an “Increased Amount Date”)~~ on which the Borrower proposes ~~that the~~ to borrow such New Loan ~~Commitments shall be effective~~(such date, ~~which shall be~~ a ~~date not less than ten Business Days after the date on which such notice is delivered~~ “New Loan Borrowing Date”) or give effect to the ~~Administrative Agent. The~~ Commitment Increase (the “Incremental Effective Date”), and in connection therewith: (i) the Borrower may ~~approach~~ offer any New Loan or Commitment Increase to be provided to the Lenders (but no Lenders will be required to provide any such New Loan or Commitment Increase or will have the right to be offered to provide any such New Loan or Commitment Increase) and/or other Persons approved by the Borrower and, unless such Person is a Lender or ~~any Person~~ an Affiliate or an Approved Fund of a Lender, the Administrative Agent (~~other than~~ such approval not to be unreasonably withheld or delayed) on either a ~~natural person) to provide all~~ pro-rata or ~~a portion of~~ non-pro-rata basis as determined by the ~~New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline,~~ Borrower in its sole discretion; (ii) each of the representations and warranties set forth herein or in any other Loan Document shall be true and correct in all material respects immediately prior to, ~~to provide a New Loan Commitment. In each case~~and immediately after giving effect to, the borrowing of any such New Loan ~~Commitments shall become effective as~~ or the effectiveness of ~~the applicable Increased Amount Date~~any Commitment Increase; provided that (i1) any such representation or warranty which expressly relates to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, and any representation and warranty that is qualified by or subject to a Material Adverse Effect or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification or materiality) and (2) with respect to any New Loan in connection with a Limited Condition Investment, such representations and warranties shall only be required to be true and correct in all material respects on and as of the date of the applicable LCT Test Date; (iii) immediately prior to, and immediately after giving effect to, the borrowing of any such New Loan or any Incremental Effective Date, no Default or Event of Default shall have occurred and be continuing (except that, with respect to any New Loan in connection with a Limited Condition Investment, the requirement pursuant to this clause (a)(iii) shall be that no Event of Default shall exist on at the applicable LCT Test Date and no Event of Default under Section 8.01(a) or 8.01(f) (solely with respect to the Borrower) shall exist as of the effectiveness of such ~~Increased Amount Date before or~~ Incremental Agreement in each case after giving effect to such New Loan); (iv) subject to the provisions of Section 1.11 with respect to any New Loan ~~Commitments~~or Commitment Increase in connection with a Limited Condition Investment, ~~as applicable; (ii) both before~~ immediately prior to, and immediately after giving effect to to, the ~~making~~ borrowing of any ~~Series~~ such New Loan or the initial borrowing under such Commitment Increase and the use of proceeds thereof, on a pro forma basis, the Borrower shall be in compliance with the covenants in Section 7.11 as of the then most recently ended fiscal quarter of the Borrower; (v) no consent of any Lender shall be required in connection with any increase in the Commitments in respect of any New ~~Term Loans~~ Loan or Commitment Increase or the funding of its share of the New ~~Revolving~~ Loans, in each ~~of the conditions set forth~~ case in accordance with this Section ~~7 shall be satisfied;~~ 2.12(a); (~~iii~~vi) ~~the~~ each commitment for a New Loan ~~Commitments~~ (a “New Commitment”) and each Commitment Increase shall ~~be effected pursuant to one~~ become effective when the Persons (including Lenders) providing such New Loan or ~~more Joinder Agreements executed~~ Commitment Increase (such Lenders and ~~delivered by~~ other Persons, the “Incremental Lenders”), the Borrower and the Administrative ~~Agent,~~ Agent shall have entered into a written agreement (each an “Incremental Agreement”) pursuant to which (A) each such Incremental Lender agrees to provide a New Commitment and ~~each of which shall be recorded~~ to extend a New Loan or increase its Commitments in the ~~Register~~ amount specified therein, (B) each such Incremental Lender that is not then a Lender agrees to assume and ~~shall be subject to~~ accept the ~~requirements set forth in Section 5.4(d);~~ obligations and rights of a Lender hereunder, (ivC) the Borrower accepts such New Commitment or Commitment Increase and (D) a New Loan Borrowing Date is specified; (vii) the Administrative Agent shall ~~make any payments required pursuant to Section 2.11 in connection~~ have received a certificate signed by a Responsible Officer of the Borrower certifying compliance with the conditions specified in Section 2.12(a)(ii), Section 2.12(a)(iii) and Section 2.12(a)(iv); (viii) the principal amount of each New Loan ~~Commitments, as applicable~~and each Commitment Increase shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000; ~~and~~ and (vix) the ~~Borrower~~ Administrative Agent shall ~~deliver or cause to be delivered any~~ have received such legal opinions or and other documents reasonably requested by the Administrative Agent at the direction of the Incremental Lenders, in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applytherewith. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Incremental Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent~~Agent and the Borrower, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.12. (c) Any New Loan: (i) ~~The~~ may be pari passu with or junior to any then-existing Term Loans in right of payment; (ii) shall not mature earlier than the Maturity Date; (iii) subject to any necessary adjustments reasonably acceptable to the Administrative Agent and the Borrower to make such New Loans fungible with any then-existing Term Loans, shall not have a shorter Weighted Average Life to Maturity than any then-existing Loans (without giving effect to 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 and original issue discounts as determined by the Borrower and the Incremental Lenders; provided, that with respect to New Loans that (A) are pari passu in right of payment with the Term Loans, in the event that the All-In Yield for any such New Loans is greater than the All-In Yield for the Term Loans by more than 0.50%, then the Applicable Rate for the Term Loans shall be increased to the extent necessary so that the All-In Yield for such Loans is equal to the All-In Yield for such New Loans minus 0.50%; (v) to the extent pari passu in right of payment with any then-existing Term Loans that require ratable prepayment, shall share ratably with such existing Loans, subject to the right of the Borrower to direct the application of voluntary prepayments and unless the Borrower and the Incremental Lenders providing the New Loans elect to share in such prepayments on a less than pro rata basis; (vi) shall not be (x) guaranteed or incurred by any Person that is not a Credit Party or (y) secured by any assets of the Borrower or any of its Subsidiaries unless this Agreement is amended in a form reasonably acceptable to the Administrative Agent and the Borrower so that the then-existing Loans are secured by such assets, which amendment shall not require the consent of the Lenders; (vii) may at otherwise have terms and conditions different from those of the Term Loans; provided, that (x) except with respect to matters contemplated by clauses (ii), (iii), (iv), (v) and (vi) above, the material terms of any ~~time~~ New Loans shall not be materially more favorable (when taken as a whole) to the Incremental Lenders with respect to such Loans than the terms and ~~from time to time request that all or a portion~~ conditions of the Term Loans (when taken as a whole), as applicable, as reasonably determined by the Borrower, unless such differences are (1) reasonably satisfactory to the Administrative Agent, (2) applicable only after the then existing Maturity Date or (3) included in this Agreement pursuant to an amendment to benefit the then-existing Loans (which amendment shall not require the consent of the existing Lenders) (including, for the avoidance of doubt, at the option of the Borrower, any ~~Class (an “Existing Term Loan Class”) be converted to extend~~ increase in the ~~scheduled maturity date(s) of any payment of principal with respect to all~~ applicable interest rate margin or ~~a portion of any principal~~ amount of amortization to make such ~~Term~~ New Loans fungible with such then-existing Loans), and (y) the documentation governing any ~~such Term~~ New Loans ~~which~~ may include any more restrictive terms so long as the Administrative Agent shall have been ~~so converted, “Extended Term Loans”)~~ given prompt written notice thereof and ~~to provide for other terms consistent with~~ this ~~Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide~~ Agreement is amended in a ~~notice~~ form reasonably acceptable to the Administrative Agent and the Borrower to include such more restrictive terms, which amendment shall not require the consent of the Lenders. (~~who~~ d) Each New Loan shall ~~provide~~ be deemed, for all purposes, a ~~copy~~ Loan. If any New Loans are intended to be fungible with any then-existing Term Loans, then the terms and provisions of such ~~notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term~~ New Loans ~~to be established, which~~ shall be identical to the terms and provisions of such then-existing Term Loans. The Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all such New Loans, when originally made, are included in each Borrowing of outstanding Loans of such then-existing Term Loans on a pro rata basis. This may be accomplished by allocating a portion of ~~the Existing Term~~ each such New Loan ~~Class from which they are~~ to each such outstanding Borrowing on a pro rata basis. If any New Loan is to be ~~converted except (x)~~ allocated to an existing Interest Period for a Borrowing, then the ~~scheduled final maturity date~~ interest rate thereon for such Interest Period and the other economic consequences thereof shall be ~~extended and all or any of~~ as set forth in the Incremental Agreement. In addition, the scheduled amortization payments under Section 2.04 required to be made in respect of ~~principal of the Extended~~ such then-existing Term Loans ~~may~~ after the making of such New Loans shall be ~~delayed to later dates than~~ ratably increased by the ~~scheduled amortization~~ aggregate principal amount of ~~principal of the Term~~ such New Loans and shall be further increased for all Lenders holding Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended then-existing Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis ~~with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by~~ to the ~~same assignment and participation provisions applicable~~ extent necessary to ~~Revolving Credit Commitments and~~ avoid any reduction in the ~~Revolving Credit Loans related~~ amortization payments to which such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on Lenders were entitled before such ~~date)~~recalculation. (~~iii~~e) ~~The~~ Each Commitment Increase shall be on the same terms as the Revolving Loans. On each Incremental Effective Date with respect to each Commitment Increase, if there are Revolving Loans then outstanding, the Borrower shall ~~provide~~ prepay such Revolving Loans (and pay any additional amounts required pursuant to Section 3.05 in connection therewith), and borrow Revolving Loans from the Incremental Lender(s), as shall be necessary in order that, after giving effect to such prepayments and borrowings, all Revolving Loans will be held ratably by the Revolving Lenders (including the Incremental Lender(s)) in accordance with their respective Commitments after giving effect to the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coIncrease.

Appears in 2 contracts

Sources: Credit Agreement (Accelerant Holdings), Credit Agreement (Accelerant Holdings)

Incremental Facilities. (a) ~~The~~ On or before the sixth anniversary of the Closing Date, the Borrower ~~may~~ may, by written notice to the Administrative ~~Agent~~ Agent, elect to request the establishment of one or more ~~(x) additional tranches of term loans (the commitments thereto, the “~~New ~~Term Loan Commitments”) and/or (y) increases in Revolving Credit~~ Construction Commitments (the “New ~~Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan~~ Construction Commitments”), by in an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $150,000,000 in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)aggregate. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Construction Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (ii) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Construction Lender”) to ~~provide all or a~~ which the Borrower proposes to allocate any portion of such New Construction Commitments and the ~~New Loan Commitments; provided that any~~ amounts of such allocations. Any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Construction Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Construction Commitment~~. In each case, such~~ . (b) Each New ~~Loan Commitments~~ Construction Commitment shall become effective as of the ~~applicable~~ Increased Amount ~~Date; provided that~~ Date applicable to it so long as each of the following conditions are satisfied: (i) ~~no Default or Event of Default shall exist on such Increased Amount Date~~ Both before or and immediately after giving effect to such New ~~Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans~~Construction Commitment, each of the conditions set forth in ~~Section 7~~ Sections 4.02(b), 4.02(c), 4.02(d), 4.02(e) and 4.02(f) shall be ~~satisfied;~~ satisfied (except that the condition set forth in clause (i) of Section 4.02(f) does not need to be satisfied so long as such condition is satisfied after giving such effect). (ii) Such New Construction Commitment shall be established in an amount not less than $50,000,000 and the New Construction Commitments, in total, including such New Construction Commitment, will not be established more than three times. (iii) Concurrently with such New Construction Commitment becoming effective, the ~~New Loan Commitments~~ Borrower shall ~~be effected pursuant~~ procure an Equity Contribution from the Sponsor that satisfies the requirements of Section 2.04 of the Equity Commitment Agreement. (iv) The Borrower shall provide to ~~one or more Joinder Agreements executed and delivered~~ the Administrative Agent an updated Project Budget and, if requested by the ~~Borrower and~~ Administrative Agent, ~~and~~ an updated Project Schedule, in each ~~of which shall be recorded in the Register and shall be subject~~ case reasonably satisfactory to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in ~~connection~~ consultation with ~~any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated~~the Independent Engineer, ~~a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if~~ reflecting the use of proceeds of New Construction Loans, either prior to or within 30 days (or such longer period as the Administrative Agent may consent to) following the Increased Amount Date for such New ~~Loan Commitments is an acquisition or investment permitted~~ Construction Commitment. (v) The interest rate margins applicable to the New Construction Loans made under ~~this Agreement~~such New Construction Commitment will not be more than 0.25% higher than the corresponding interest rate margins for the existing Construction Loans. All other terms of the New Construction Loans made under such New Construction Commitment shall be identical to the terms of the existing Construction Loans, ~~if agreed among~~ except for any different terms as the Administrative Agent and the Borrower ~~and the New Revolving Loan Lenders and/or New Term Loan Lenders~~may agree to, ~~as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions~~ which terms will be set forth in ~~clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used~~ the applicable supplement to ~~replace or refinance Term Loans or Revolving Credit Commitments~~ this Agreement entered into pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating theretothis Section 2.19. (c) On any Increased Amount Date on which ~~any~~ New ~~Term Loan~~ Construction Commitments ~~of any Series~~ are effective, subject to the satisfaction of the ~~foregoing terms and conditions~~conditions set forth in Section 2.19(b), ~~(i)~~ each New Construction Lender ~~with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series~~ shall make a Loan to the Borrower (a “New ~~Term~~ Construction Loan”) in an amount equal to its New ~~Term Loan Commitment~~ Construction Commitment. The New Construction Loans made by the New Construction Lenders on such Increased Amount Date shall be designated as a series (a “Series”) of ~~such Series, and (ii) each~~ New ~~Term Loan~~ Construction Loans for all purposes of this Agreement. Each New Construction Lender of ~~any~~ a Series shall become a Lender hereunder with respect to the New ~~Term Loan~~ Construction Commitment of such Series and the New ~~Term~~ Construction Loans of such Series made pursuant thereto. (d) The ~~terms and provisions of the~~ New ~~Term Loans and New Term Loan~~ Construction Commitments ~~of any Series~~ shall ~~be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical~~ be effected pursuant to one or more ~~Classes~~ supplements to this Agreement executed and delivered by the New Construction Lenders and the Administrative Agent, each of ~~the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series~~ which shall be ~~no earlier than the 2018B Second New Term Loan Maturity Date (or~~ recorded in the ~~case of~~ Register and each New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans Construction Lender shall be ~~identical, (ii) the fees, pricing and the amortization schedule applicable~~ subject to the ~~New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be~~ requirements set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder AgreementSection 2.16(e). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) In addition to the requirements set forth in Section 5.10, the Borrower may only apply the proceeds of the New Construction Loans to pay Project Costs relating to portions of the Project (other than any Excluded Portion) in respect of which the Borrower will earn a return under its FERC-approved tariff. The Borrower may not apply proceeds of the New Construction Loans to the Jointly Owned Segment unless the conditions set forth in Section 4.02(g) are satisfied. (f) Each ~~Joinder Agreement~~ supplement entered into pursuant to this Section 2.19 may, without the consent of any Lenders (other ~~Lenders~~than the New Construction Lender under such supplement), effect such amendments to this Agreement and the other ~~Credit~~ Financing Documents as may be necessary or appropriate, ~~in the opinion of~~ as determined by the Administrative Agent, to ~~effect~~ implement the ~~provision~~ provisions of this Section ~~2.14~~2.19. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Allegheny Energy, Inc), Credit Agreement (Allegheny Energy, Inc)

Incremental Facilities. (a) ~~The~~ At any time and from time to time following the Restatement Effective Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more ~~(x)~~ additional tranches of term loans (the commitments thereto, the “New ~~Term~~ Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ five Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New ~~Term Loans or New Revolving~~ Loans, ~~each~~ the Outstanding Amount shall not exceed any of the ~~conditions set forth~~ then-applicable Borrowing Bases as reflected in the Borrowing Base Certificate most recently delivered pursuant to Section ~~7 shall be satisfied~~6.02(e); (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrower, the New Loan Lenders and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in ~~Section 5.4(d~~Sections 3.01(e) and (f)~~; (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (viv) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New ~~Term~~ Loans made on an Increased Amount Date shall be designated, a separate ~~series (a “Series”)~~ Series of New ~~Term~~ Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New ~~Term~~ Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender or other Person with a New ~~Term~~ Loan Commitment (each, a “New ~~Term~~ Loan Lender”) of any Series shall make a Loan to the Borrower (a “New ~~Term~~ Loan”) in an amount equal to its New ~~Term~~ Loan Commitment of such Series, and (ii) each New ~~Term~~ Loan Lender of any Series shall become a Lender hereunder with respect to the New ~~Term~~ Loan Commitment of such Series and the New ~~Term~~ Loans of such Series made pursuant thereto. (dc) The terms and provisions of the New ~~Term~~ Loans and New ~~Term~~ Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to ~~one or more Classes of~~ the existing ~~Initial Term~~ Loans; provided that (i) the applicable New ~~Term~~ Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New Term~~ Original Loan Maturity Date ~~(or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced)~~ and mandatory prepayment and other payment rights (other than scheduled amortization) of the New ~~Term~~ Loans and the existing ~~Term~~ Loans shall be identical, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New ~~Term~~ Loans of each Series shall be determined by the Borrower and the applicable ~~new~~ New Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided that the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of all New ~~Term~~ Loans shall be no shorter than the ~~weighted average life~~ then remaining Weighted Average Life to ~~maturity~~ Maturity of the ~~2018B Second New Term Loans~~ Initial Loans, (or iii) in the ~~case of New Term Loans that are Refinancing Commitments, no shorter than that~~ event the Yield of the ~~Term~~ New Loans ~~being refinanced)~~ of any Series exceeds the Yield of the Initial Loans by more than 50 basis points, then the Applicable Rate for the Initial Loans shall be increased to the extent necessary so that the Yield for the Initial Loans shall be 50 basis points less than the Yield for the New Loans and (~~iii~~iv) all other terms applicable to the New ~~Term~~ Loans of each Series that differ from the existing ~~Term~~ Loans, which terms may be materially different from the Initial Loans except as provided above, shall be ~~reasonably acceptable to~~ agreed between the ~~Administrative Agent~~ Borrower and the New Loan Lenders providing such New Loans (as evidenced by its execution of the applicable Joinder ~~Agreement). The~~ Agreement which shall set forth the terms ~~and provisions~~ of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New ~~Revolving Credit Commitments~~Loans). (ed) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section ~~2.14~~2.13. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Springleaf Finance Corp), Credit Agreement (Springleaf Finance Inc)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable (unless, in connection with an acquisition or investment subject to customary “Sungard” or “certain funds” conditionality, otherwise agreed to by the Lenders providing such Incremental Loans), as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement~~; provided that (A) if~~ . On and after the ~~use~~ Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of ~~proceeds~~ Additional Revolving Credit Loans for all purposes of ~~such New Loan Commitments is an acquisition or investment permitted under~~ this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ Initial Term Loans, (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans ~~(or~~ shall be determined by the Borrower and the Lenders thereunder; provided that solely in the case of New Term Loans ~~that are Refinancing Commitments, no shorter than that~~ incurred prior to the 18 month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans in respect of such New Term Loans ~~being refinanced) and (iii) all other terms applicable~~ exceeds the Effective Yield for LIBOR Loans in respect of the Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans in respect of the Initial Term Loans is equal to the Effective Yield for LIBOR Loans in respect of the New Term Loans ~~of each Series that differ from~~ minus 0.50%; and (iv) to the ~~existing~~ extent such terms and documentation are not consistent with the Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and New~~ Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the ~~2020~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the ~~2020~~ Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments; , (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that ~~New~~ the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may ~~provide for (a)~~ constitute a ~~commitment termination date that is later than~~ separate Class or Classes, as the ~~commitment termination date~~ case may be, of Commitments from the ~~2020~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (~~or in~~ viii) the ~~case~~ pricing, fees, maturity and other immaterial terms of ~~New~~ the Additional Revolving Credit ~~Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced)~~ Loans may be different and ~~(b) fees and pricing as agreed between~~ shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any ~~New~~ Incremental Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: First Lien Credit Agreement (BrightView Holdings, Inc.), First Lien Credit Agreement (BrightView Holdings, Inc.)

Incremental Facilities. ~~(a) The~~ Borrower may by written notice to Administrative Agent elect to ~~request~~ request, prior to the ~~establishment of one or more~~ Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term~~ Revolving Loan Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $175,000,000 in the ~~aggregate and~~ aggregate. Such New Revolving Loan Commitments shall not be less than $~~100,000,000~~ 2,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative ~~Agent or (y)~~ Agent), and shall ~~constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)~~be in integral multiples of $100,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Borrower proposes that the New Revolving Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to Administrative Agent and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Loan Lender”) to ~~provide all or a~~ whom Borrower proposes any portion of such New Revolving Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such New Revolving Loan Commitments in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment; and provided further that any New Revolving Loan Lender must be reasonably satisfactory to the Swing Line Lender and the Issuing Banks. ~~In each case, such~~ Such New Revolving Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to ~~the making of any Series of New Term Loans or~~ such New Revolving ~~Loans,~~ Loan Commitments each of the conditions set forth in Section 7 3.2 shall be ~~satisfied~~satisfied (provided that with respect to any New Revolving Loans that shall be used in whole or in part to finance a Permitted M&A Transaction, the conditions precedent to the extension of credit thereunder regarding the accuracy of representations and warranties (other than “Specified Representations” and specified acquisition agreement representations of a type similar to the “Specified Acquisition Agreement Representations”) and the requirement of the absence of a Default or Event of Default may be waived by the New Revolving Loan Lenders or limited as mutually agreed upon by Borrower and the New Revolving Loan Lenders (other than an Event of Default arising under Section 8.1(a), (f) or (g)); (~~iii~~3) Borrower shall be in pro forma compliance with the covenants set forth in Section 6.7(a) and Section 6.7(b) as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Revolving Loan Commitments; (4) the New Revolving Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the ~~Borrower~~ New Revolving Loan Lender, and Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(c); (iv5) ~~the~~ Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan ~~Commitments, as applicable;~~ Commitments and (v6) ~~the~~ Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto~~. (c) On any~~ . Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date ~~on which any~~ and in respect thereof (y) the New ~~Term~~ Revolving Loan Commitments ~~of any Series are effective~~and the New Revolving Loan Lenders, and (z) the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined assignments contemplated by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement)this Section 2.24. The terms and provisions of the New Revolving Loans ~~and New Revolving Credit Commitments~~ shall be identical to the ~~2020~~ Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of ~~the~~ Administrative Agent, to effect the provision of this Section ~~2.14~~2.24. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit and Guaranty Agreement, Credit and Guaranty Agreement (TerraForm Power, Inc.)

Incremental Facilities. (a) ~~The~~ At any time or from time to time after the Second Restatement Effective Date, Parent Borrower may by written notice to the Syndication Agent and Administrative Agent elect to request (A) prior to the Latest Maturity Date of any Loan hereunder, one or more increases to the existing Revolving Commitments of any Class (any such increase, the “New Revolving Loan Commitments”) and/or (B) prior to the Latest Maturity Date of any Loan hereunder, the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an ~~aggregate~~ amount not in excess of the ~~Maximum Incremental Facilities Amount~~ greater of (x) $300,000,000 and (y) the amount of New Term Loan Commitments and/or New Revolving Loan Commitments such that the Senior Secured Leverage Ratio shall be no greater than 3.50 to 1.00 as of the end of the Test Period most recently ended after giving pro forma effect to such New Term Loan Commitments and/or New Revolving Loan Commitments (and, in each case, with respect to any New Revolving Loan Commitment, assuming a borrowing of the maximum amount of Loans available under such New Revolving Loan Commitment and any New Revolving Loan Commitments previously made pursuant to this Section 2.23). Each New Revolving Loan Commitment or New Term Loan Commitment shall be in an aggregate ~~and~~ principal amount that is not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent or ~~(y) shall constitute~~ such lesser amount if such amount represents all remaining availability under the ~~difference between~~ limit set forth in the ~~Maximum Incremental Facilities Amount~~ preceding sentence), and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Parent Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be ~~effective, which shall be a date not less than ten Business Days after~~ effective and (B) the ~~date on which such notice is delivered to the Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Loan Lender” or “New Term Loan Lender,” as applicable) to ~~provide all or a~~ whom Parent Borrower proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date ~~before or~~ after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (ii2) ~~both before and~~ after giving effect to the making of any Series of New Term Loans or effectiveness of New Revolving ~~Loans~~Loan Commitments, each of the conditions set forth in Section 7 3.2(a) shall be satisfied; (~~iii~~3) Parent Borrower and its Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 6.7(b) as of the last day of the most recently ended Fiscal Quarter for which a Compliance Certificate has been (or was required to have been) delivered to Administrative Agent pursuant to Section 5.1(c) after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments (and with respect to any New Revolving Loan Commitment, assuming a borrowing of the maximum amount of New Revolving Loans available under such New Revolving Loan Commitment), as applicable; (4) the New Revolving Loan Commitments or New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Parent Borrower, the ~~Borrower~~ New Revolving Loan Lender or New Term Loan Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the ~~Register~~ Register, and each New Revolving Loan Lender and New Term Loan Lender shall be subject to the requirements set forth in ~~Section 5.4(d~~Sections 2.20(e), (f) and (h); (iv5) ~~the~~ Parent Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as if applicable; and (v6) ~~the~~ Parent Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ of the applicable Class shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Revolving Lenders ~~with Revolving Credit Commitments~~of the applicable Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving ~~Credit~~ Loans of the applicable Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans of the ~~Revolving Credit Loans~~ applicable Class will be held by existing Revolving ~~Credit~~ Lenders of the applicable Class and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Loan Commitments of the applicable Class after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit Commitments~~Commitments of the applicable Class, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Loan Commitment of the applicable Class and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan of the applicable Class and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.2 and 2.13 of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the~~ Parent Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) Administrative Agent shall notify Lenders promptly upon receipt of Parent Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. (e) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall bebe as agreed between Parent Borrower and the New Term Loan Lenders providing such New Term Loans and New Term Loan Commitments, and except as otherwise set forth ~~herein~~ herein, to the extent not substantially similar to or in less favorable to such New Term Loan Lenders than the Tranche B Term Loans shall be reasonably satisfactory to Administrative Agent. The terms and provisions of the New Revolving Loans shall be identical to the Revolving Loans of the applicable ~~Joinder Agreement~~Class. The proceeds of any Revolving Loans borrowed on the Increased Amount Date for any New Revolving Loan Commitments shall not be used to refinance, ~~identical~~ redeem, retire, defease or otherwise make any payment on unsecured Indebtedness of Holdings or any of its Subsidiaries (other than working capital revolving credit facilities), nor shall such Revolving Loans be made in exchange for any such unsecured Indebtedness (other than working capital revolving credit facilities). In any event (i) the Weighted Average Life to ~~one or more Classes~~ Maturity of all New Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the ~~existing Initial~~ Tranche B Terms Loans (except by virtue of amortization or prepayment of the Tranche B Term ~~Loans; provided that~~ Loans prior to the time of such incurrence), (iii) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ latest of the ~~Term Loans being refinanced~~final maturity of (x) ~~and mandatory prepayment rights (other than scheduled amortization) of~~ the ~~New Term~~ Revolving Loans and (y) the ~~existing~~ Tranche B Term ~~Loans shall be identical~~Loans, (iiiii) the ~~fees, pricing and the amortization schedule~~ yield applicable to the New Term Loans of each Series shall be determined by ~~the~~ Parent Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; ~~provided~~ provided, however that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms Effective Yield applicable to the New Term Loans shall not be greater than the Effective Yield as amended through the date of ~~each Series that differ from~~ such calculation with respect to the ~~existing~~ Tranche B Term Loans plus 0.50% per annum unless the interest rate with respect to the Tranche B Term Loans is increased so as to cause the then applicable Effective Yield under this Agreement on the Tranche B Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) to equal the Effective Yield then applicable to the New Term Loans (after giving effect to all upfront or similar fees or original issue discount payable with respect to such New Term Loans) minus 0.50% and (iv) the proceeds of the New Term Loans shall not be ~~reasonably acceptable~~ used to ~~the Administrative Agent (as evidenced by~~ refinance, redeem, retire, defease or otherwise make any payment on unsecured Indebtedness of Holdings or any of its ~~execution of the applicable Joinder Agreement). The terms and provisions of~~ Subsidiaries, nor shall the New ~~Revolving~~ Term Loans ~~and New Revolving Credit Commitments shall~~ be ~~identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide~~ made in exchange for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing any such ~~New Revolving Credit Commitments. (e)~~ unsecured Indebtedness. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of ~~the~~ Administrative ~~Agent,~~ Agent and Parent Borrower to effect the provision of this Section ~~2.14. (i) The Borrower may at any time~~ 2.23, and ~~from time to time request that all or a portion~~ for the avoidance of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converteddoubt, ~~“Extended Term Loans”) and to provide for other terms consistent with~~ this Section ~~2.14(f). In order to establish~~ 2.23 shall supersede any ~~Extended Term Loans, the Borrower shall provide a notice~~ provisions in Section 2.17 or 10.5 to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedcontrary. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (IMS Health Holdings, Inc.), Credit and Guaranty Agreement (IMS Health Holdings, Inc.)

Incremental Facilities. (a) ~~The~~ At any time following the Closing Date, the Borrower may by written notice to Administrative Agent elect to request the establishment of one or more ~~(x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y)~~ increases in or replacement classes of Revolving Credit Commitments (the “New Revolving Credit Commitments~~” and, together with the New Term Loan Commitments, the “New Loan Commitments~~”), by an aggregate principal amount not in excess of $1,000,000,000 (such amount, the ~~Maximum~~ “Incremental ~~Facilities Amount in the aggregate~~ Amount”) at such time and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the ~~difference between the Maximum~~ entire Incremental ~~Facilities~~ Amount ~~and all~~ at such ~~New Loan Commitments obtained on or prior to such date~~time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Revolving Credit Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as the Administrative Agent may reasonably agree) after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural ~~person~~person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural persons)) to provide all or a portion of the New ~~Loan~~ Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Credit Commitment. In each case, such New ~~Loan~~ Revolving Credit Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Revolving Credit Commitments, as applicable; (ii) ~~both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans,~~ each of the conditions set forth in Section 7 shall be satisfied; (iii) the Borrower shall be in Pro Forma Compliance with the covenant set forth in Section 10.4; (iv) the New ~~Loan~~ Revolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (ivv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New ~~Loan~~ Revolving Credit Commitments, as applicable; ~~and~~ (vvi) the Borrower shall deliver or cause to be delivered any legal ~~opinions~~ opinions, board resolutions or other documents reasonably requested by the Administrative Agent in connection with ~~any~~ such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series~~ ; and (~~a “Series”~~vii) ~~of New Term Loans for~~ all ~~purposes of this Agreement; provided that (A) if~~ fees and expenses owed to the ~~use of proceeds~~ Administrative Agent and the applicable Lenders in respect of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments ~~pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth~~ shall be paid in ~~clauses (i) and (ii) above shall not apply~~full. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) (provided that the Administrative Agent, the Letter of Credit Issuers and the Swingline Lender shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant New Revolving Loan Lender’s allocation of New Revolving Credit Commitments if such consent would be required under Section 14.6(b) for an assignment of Loans to such New Revolving Loan Lender) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable ~~currency(ies~~currencies (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto[Reserved]. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments[Reserved]. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In ~~order~~ addition to ~~establish~~ any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and ~~all or~~ provisions in any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, ~~as the case may be, with respect~~ and any changes or amendments to ~~the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of~~ this ~~Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher~~ Agreement or ~~lower than the interest margins~~ any other Credit Document provided for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A)therein, in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that ~~all~~ are required or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided thatforegoing provisions of this Section 2.14, notwithstanding anything to the contrary in this Section ~~2.14(f)~~ 2.14 and without limiting the generality or ~~otherwise, (1)~~ applicability of the ~~borrowing and repayment (other than in connection with a permanent repayment and termination~~ provisions of ~~commitments) of Loans with respect~~ Section 14.1 to any ~~Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2~~Section 2.14(e) ~~assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable~~ Additional Amendments, any Joinder Agreement may provide for additional terms and/or additional amendments to ~~Revolving Credit Commitments~~ this Agreement and the ~~Revolving~~ other Credit ~~Loans related to~~ Documents (any such ~~Commitments set forth in~~ amendment a “Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on 2.14(e) Additional Amendment”); provided that such ~~date). (iii~~Section 2.14(e) ~~The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent)~~ Additional Amendments do not become effective prior to the ~~date on which Lenders under the applicable Existing Class or Existing Classes are requested~~ time that such Section 2.14(e) Additional Amendments have been consented to ~~respond. Any Lender~~ (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested including pursuant to ~~the Extension Request, Term Loans or Revolving Credit Commitments,~~ consents applicable to holders of New Revolving Credit Commitments ~~or Extended Revolving Credit Commitments~~ provided for in any Joinder Agreement) by such of the ~~Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments~~Lenders, the Borrower and other parties (if any) as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be ~~extended and the related obligations~~ required in order for such Section 2.14(e) Additional Amendments to ~~make Swingline Loans and issue Revolving Letters of Credit may be co~~become effective at such time in accordance with Section 14.1.

Appears in 2 contracts

Sources: Credit Agreement (HCA Healthcare, Inc.), Credit Agreement (HCA Healthcare, Inc.)

Incremental Facilities. (a) ~~The~~ Any Borrower may by written notice to ~~Administrative~~ the Agent elect to request the establishment of one or more (xw) additional tranches of term loans of any class in Dollars, Euros, Sterling, Canadian Dollars or any other currency acceptable to the Agent (the commitments with respect thereto, the “New Term ~~Loan~~ Commitments”), (x) ~~and/or~~ increases in the amount of LC Facility Deposits or additional tranches of synthetic letter of credit facility deposits in Dollars, Euros, Sterling, Canadian Dollars or any other currency accept to the Agent (the commitments with respect thereto, the “New LC Facility Commitments”), (y) increases in Revolving ~~Credit~~ Commitments under one or more of the Revolving Facilities (the “New Revolving ~~Credit~~ Commitments” and, together with the New Term ~~Loan~~ Commitments and New LC Facility Commitments, the “New ~~Loan~~ Commitments”) or under a new revolving facility (a “New Revolving Facility”), by an aggregate amount not in excess of the ~~Maximum~~ Dollar Equivalent of $750.0 million (it being understood and agreed that $555.0 million of remaining capacity with respect to such amount exists immediately following the Second Restatement Effective Date) minus the aggregate principal amount of Permitted Alternative Incremental Facilities ~~Amount in~~ Debt issued prior to the ~~aggregate~~ date of determination (excluding for purposes of such maximum amount any Refinancing Term Loans, Replacement Revolving Commitments and Replacement LC Facility Commitments) and not less than the Dollar Equivalent of $~~100,000,000~~ 25.0 million individually (or such lesser amount ~~as (x) may~~ which shall be approved by the ~~Administrative~~ Agent or ~~(y)~~ such lesser amount that shall constitute the ~~difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date~~entire remaining availability hereunder). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New ~~Loan~~ Commitments shall be effective, which shall be a date not less than ~~ten~~ five Business Days after the date on which such notice is delivered to ~~the Administrative~~ Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments~~; provided that any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Commitment. ~~In each case, such~~ Such New ~~Loan~~ Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments, as applicable; (ii) both before and after giving effect to the making of any ~~Series of~~ New Term ~~Loans~~ Loans, New LC Facility Deposits or New Revolving Loans, each of the conditions set forth in Section 7 4.02 shall be satisfied; (iii) the U.S. Borrower and the Restricted Subsidiaries shall be in pro forma compliance with Section 6.10 as of the last day of the most recently ended fiscal quarter prior to such Increased Amount Date and as in effect on such Increased Amount Date after giving effect to such New ~~Loan~~ Commitments and any Investment to be consummated in connection therewith and shall not in any event, on a pro forma basis, have a Consolidated Secured Debt Ratio as of such most recently ended fiscal quarter that is in excess of the level specified on the Closing Date as the maximum Consolidated Secured Debt Ratio permitted as of the end of the first full quarter following the Closing Date; (iv) the New Commitments shall be effected pursuant to one or more ~~Joinder Agreements~~ supplements to this Agreement executed and delivered by the ~~Borrower~~ New Lenders and ~~Administrative~~ the Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) each New Lender shall automatically become party to the ~~Borrower shall deliver or cause~~ Loss Sharing Agreement pursuant to ~~be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any~~ such ~~transaction~~supplement. Any New Term Loans or New LC Facility Deposits (other than any New LC Facility Deposits which are designated by the U.S. Borrower, with the consent of the LC Facility Issuing Bank, in the applicable supplement as “LC Facility Deposits” under the LC Facility and New Term Loans which are designated as an increase in the amount of any previously established Class of Term Loans) made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans or New LC Facility Deposits for all purposes of this Agreement~~; provided that (A) if~~ . In connection with the ~~use~~ obtaining of ~~proceeds of such~~ any New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to ~~clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”~~this Section 2.19(a), the ~~conditions set forth~~ U.S. Borrower shall, or shall cause the other applicable Loan Parties to, make such amendments to the Collateral Documents and take such other customary actions, if any, as the Agent may reasonably request in ~~clauses~~ order to preserve and protect the Liens on the Collateral securing the Obligations (ieither prior to or within 30 days (or such longer period as to which the Agent may consent) ~~and (ii) above shall not apply~~following the Increased Amount Date for such New Commitments). (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Commitments are ~~effected~~effected under any existing Revolving Facility (but not any New Revolving Facility being established on such date), subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving ~~Credit~~ Commitments under the applicable Revolving Facility shall assign to each Lender with a New Revolving ~~Credit~~ Commitment (each, a “New Revolving ~~Loan~~ Lender”) and each of the New Revolving ~~Loan~~ Lenders shall purchase from each of the Lenders with Revolving ~~Credit Commitments~~Commitments under the applicable Revolving Facility, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding under the applicable Revolving Facility on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Lenders with Revolving ~~Credit Lenders~~ Loans under the applicable Revolving Facility and New Revolving ~~Loan~~ Lenders ratably in accordance with their ~~Revolving Credit Commitments~~ Ratable Portions after giving effect to the addition of such New Revolving ~~Credit~~ Commitments to the Revolving ~~Credit Commitments~~Commitments under the applicable Revolving Facility, (b) each such New Revolving ~~Credit~~ Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment under the applicable Revolving Facility and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan under the applicable Revolving Facility and (c) each New Revolving ~~Loan~~ Lender with a New Revolving Commitment under an existing Revolving Facility shall become a Lender under the applicable Revolving Facility with respect to the New Revolving ~~Credit~~ Commitment and all matters relating thereto. On any Increased Amount Date on which New Revolving Commitments are effected under any New Revolving Facility, subject to the satisfaction of the foregoing terms and conditions, the Agent and the Borrowers shall enter into an amendment to this Agreement to incorporate the terms of such New Revolving Facility hereunder on substantially the same terms as were applicable to the existing Revolving Facilities (except with respect to the rate of interest and the Scheduled Termination Date applicable to such New Revolving Facility and except as otherwise reasonably acceptable to the Agent and the Joint Lead Arrangers). (c) On any Increased Amount Date on which any New Term ~~Loan~~ Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term ~~Loan~~ Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in the requested currency in an amount equal to its New Term ~~Loan~~ Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term ~~Loan~~ Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) On any Increased Amount Date on which any New LC Facility Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New LC Facility Commitment (each, a “New LC Facility Lender”) of any Series shall make an LC Facility Deposit in Dollars (a “New LC Facility Deposit”) with, in the case of New LC Facility Deposits designated as an increase to the LC Facility, the LC Facility Agent, and in the case of any new Series of New LC Facility Deposits, the entity that agrees to act as agent for the applicable Series of New LC Facility Commitments, in each case, in an amount equal to its New LC Facility Commitment, and (ii) each New LC Facility Lender shall become a Lender hereunder with respect to the New LC Facility Commitment and the New LC Facility Deposits made pursuant thereto. (e) The terms and provisions of the New Term Loans and New Term ~~Loan~~ Commitments of any Series and of the New LC Facility Deposits and New LC Facility Deposit Commitments shall be, except as otherwise set forth herein or in the applicable ~~Joinder Agreement~~supplement relating thereto, identical to ~~one or more Classes of~~ the existing ~~Initial~~ Term ~~Loans~~Loans and existing LC Facility Deposits; provided that (i) the ~~applicable New Term Loan Maturity Date~~ final maturity date of each Series shall be no earlier than the ~~2018B Second New~~ final maturity of the applicable Class of existing Term ~~Loan Maturity~~ Loans or the LC Facility Deposits outstanding on the Increased Amount Date ~~(or in the case of~~ with respect to such New Term Loans ~~that are Refinancing Commitments, no earlier than that of~~ or New LC Facility Deposits and the ~~Term Loans being refinanced) and~~ mandatory prepayment and other payment rights ~~(other than scheduled amortization)~~ of the New Term Loans and the existing Term Loans (other than the Canadian Term B Loans unless such New Term Loans are to a Foreign Borrower formed under the laws of Canada) shall be identical, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable new Lenders and shall be set forth in ~~each~~ the applicable ~~Joinder Agreement~~supplement relating thereto and the applicable fees payable pursuant to any New LC Facility Deposits shall be determined by the applicable Borrower and the New LC Facility Lenders providing such New LC Facility Deposits; provided that the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~all~~ any New Term Loans ~~shall~~ will be no shorter than the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~2018B Second New~~ existing Term Loans ~~(or in the case of New~~ under any Term ~~Loans that are Refinancing Commitments~~Loan Facility, ~~no shorter than that of the Term Loans being refinanced)~~ and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the ~~Administrative~~ Agent (as evidenced by its execution of the applicable ~~Joinder Agreement~~supplement relating thereto). The terms and provisions of the New Revolving Loans and New Revolving ~~Credit~~ Commitments shall be identical to the ~~2020~~ Revolving ~~Credit~~ Loans and the ~~2020~~ Revolving ~~Credit Commitments;~~ Commitments under the applicable Revolving Facility, provided ~~that~~ that, with respect to any New Revolving ~~Credit Commitments may provide for~~ Facility, (ai) ~~a commitment termination date that is later~~ the Scheduled Termination Date with respect thereto shall be set forth in the applicable supplement and shall be no earlier than the ~~commitment termination date~~ Scheduled Termination Date of any other Revolving Facility in effect at such time, (ii) the ~~2020 Revolving Credit Commitments (or in~~ rate of interest applicable thereto shall be determined by the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the applicable Borrower and the applicable new Lenders ~~providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement~~ and ~~the other Credit Documents as may~~ shall be ~~necessary or appropriate,~~ set forth in the ~~opinion~~ applicable supplement relating thereto and (iii) all other terms applicable thereto that differ from the existing Revolving Loans and Revolving Commitments under the existing Revolving Facilities shall be reasonably acceptable to the Agent (as evidenced by the execution of the ~~Administrative Agent, to effect the provision of this Section 2.14~~applicable supplement relating thereto). (i) ~~The~~ Any Borrower may at any time and from time to time request that all or a portion of the Term Loans under any Term Loan Facility of ~~any Class~~ such Borrower (an “Existing ~~Term Loan~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.19(f). In order to establish any Extended Term Loans, the applicable Borrower shall provide a notice to the ~~Administrative~~ Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing ~~Term Loan~~ Class) (a an “~~Term Loan~~ Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing ~~Term Loan~~ Class from which they are to be converted except (xw) ~~the scheduled final maturity date shall be extended and~~ all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing ~~Term Loan Class~~ Class, (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (yx) (A) the interest margins with respect to the Extended Term Loans may be higher ~~or lower~~ than the interest margins for the Term Loans of such Existing Class (and Extended Term ~~Loan Class~~ Loans may provide for prepayment protection and call protection that are different from those applicable to such Existing Class) and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), ~~in each case, to~~ (y) the ~~extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into~~ supplement providing for such Extended Term Loans ~~pursuant~~ may provide for other terms applicable to ~~any Extension Request. Any~~ such Extended Term Loans so long as either (A) such additional terms do not apply until all Term Loans, Commitments, LC Facility Deposits and New LC Facility Deposits outstanding immediately prior to the establishment of ~~any Extension Series shall constitute a separate Class of~~ such Extended Term Loans ~~from~~ have been repaid, terminated or returned as applicable, (B) such additional terms are less favorable to the holders of the Extended Term Loans than the corresponding Existing Class or (C) such additional terms have been approved by the Required Lenders and (z) the mandatory prepayment rights of the Extended Term Loans and such Existing Class may be different so long as the proportion (if any) of the proceeds thereof to which such Extended Term Loans are entitled is no greater on a proportionate basis than the portion of such proceeds to which the Existing ~~Term Loan~~ Class ~~from which they were converted~~is entitled to receive. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower Borrowers shall provide the applicable Extension Request at least ~~ten~~ five (105) Business Days ~~(or such shorter period as may be agreed by the Administrative Agent)~~ prior to the date on which Lenders under the ~~applicable~~ Existing Class ~~or Existing Classes~~ are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class ~~or Existing Classes~~ subject to such Extension Request converted into Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ shall notify the ~~Administrative~~ Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class ~~or Existing Classes subject to such Extension Request that~~ which it has elected to convert into Extended Term ~~Loans or Extended Revolving Credit Commitments, as applicable~~Loans. In the event that the aggregate amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class ~~or Existing Classes~~ subject to Extension Elections exceeds the amount of Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ requested pursuant to the Extension Request, Term Loans ~~or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes~~ subject to Extension Elections shall be converted to Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ on a pro rata basis based on the amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans included in each such Extension Election (subject to such rounding as the Agent deems expedient). For the avoidance of doubt, each Lender agrees that any Term Loan that is converted to an Extended Term Loan (and the Extending Lender providing such Extended Term Loan) shall continue to be subject to the Loss Sharing Agreement to the same extent as the Term Loan from which such Extended Term Loan was converted. Any Extended Term Loans shall be established on the date set forth in the applicable supplement entered into by the applicable Borrower and the Agent pursuant to this Section 2.19(f) (it being understood that by providing an Extension Election~~. Notwithstanding~~ , an Extending Lender will agree to be bound thereby). (g) Each supplement pursuant to this Section 2.19 may, without the ~~conversion~~ consent of any ~~Existing Revolving Credit Commitment (~~other ~~than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment~~Lenders, effect such ~~Extended Revolving Credit Commitment shall~~ amendments to this Agreement and the other Loan Documents as may be ~~treated identically to all other Old Revolving Credit Commitments for purposes~~ necessary or appropriate, in the opinion of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended Agent and the ~~related obligations~~ Joint Lead Arrangers, to ~~make Swingline Loans and issue Revolving Letters~~ effect the provision of ~~Credit may be co~~this Section 2.19.

Appears in 2 contracts

Sources: Amendment Agreement (ARAMARK Holdings Corp), Amendment Agreement (MPBP Holdings, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative Agent and each Lender, elect to ~~request~~ request, prior to the ~~establishment~~ last day of ~~one or more~~ the Revolving Period, an increase to the existing Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term Loan~~ Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together~~ by an amount with the ~~New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess~~ consent of ~~the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by~~ the Administrative Agent ~~or (y) shall constitute~~ and each Lender whose Commitment is being increased thereby in their respective sole discretion and subject to any internal approvals, which would increase the ~~difference between the Maximum Incremental Facilities~~ Facility Amount ~~and all such New Loan Commitments obtained on or prior~~ to ~~such date)~~an amount greater than $400,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Commitments shall be ~~effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to~~ effective and approved in writing by the Administrative ~~Agent. The Borrower may approach any~~ Agent and (ii) the identity of each Lender or ~~any~~ other Person (~~other than a natural person~~each, an “Increasing Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New ~~Loan~~ Commitments be allocated and the amounts of such allocations (if then known). Such New Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (iA) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments~~, as applicable~~; (~~ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~B) the New ~~Loan~~ Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender or one or more Joinder ~~Agreements~~ Supplements for any new Lender executed and delivered by the ~~Borrower~~ Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the ~~Register and shall be subject to the requirements set forth in Section 5.4(d)~~Register; (ivC) the Borrower shall ~~make~~ pay any ~~payments required pursuant to Section 2.11~~ applicable Breakage Fees in connection with the New ~~Loan~~ Commitments and shall pay any other required fees in connection with the New Commitments~~, as applicable~~; ~~and~~ (vD) the Borrower shall deliver or cause to be delivered any legal opinions or other customary closing documents (substantially consistent with the documents set forth in Section 3.01) reasonably requested by Administrative Agent or an Increasing Lender in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series~~ ; and (~~a “Series”~~E) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of ~~such new Loan~~ any allocation of New Commitments ~~in lieu~~ to a non-Lender shall be subject to the prior written consent of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applyAdministrative Agent. (b) On any Increased Amount Date on which New ~~Revolving Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the existing Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each~~of the Increasing Lenders, ~~a “New Revolving Loan Lender”)~~ and each of the ~~New Revolving Loan~~ Increasing Lenders shall purchase from each of the ~~Lenders with Revolving Credit Commitments~~existing Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the ~~Revolving Credit Loans outstanding~~ Advances Outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the Revolving Credit Loans~~ such Advances will be held by existing ~~Revolving Credit~~ Lenders and ~~New Revolving Loan~~ Increasing Lenders ratably in accordance with their ~~Revolving Credit~~ Commitments after giving effect to the addition of such New ~~Revolving Credit~~ Commitments to the ~~Revolving Credit~~ Commitments, (bii) each New ~~Revolving Credit~~ Commitment shall be ~~deemed~~ deemed, for all ~~purposes~~ purposes, a ~~Revolving Credit~~ Commitment and each ~~Loan~~ Advance made thereunder (a “New ~~Revolving Loan~~Advance”) shall be deemed, for all purposes, ~~a Revolving Credit Loan~~ an Advance and (ciii) each ~~New Revolving Loan~~ new Lender shall become a Lender with respect to the ~~New Revolving Credit Commitment~~ Commitments and all matters relating thereto. (c) ~~On any~~ The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date ~~on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms~~ and ~~conditions,~~ in respect thereof (i) ~~each Lender with a~~ the New ~~Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to~~ Commitments and the ~~Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series,~~ Increasing Lenders and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of ~~New Term Loans that are Refinancing Commitments~~each notice to any Lender, ~~no earlier than that of~~ the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical~~respective interests in such Lender’s Advances, ~~(ii) the fees, pricing and the amortization schedule applicable~~ in each case subject to the ~~New Term Loans of each Series shall be determined~~ assignments contemplated by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement)this Section 2.21. The terms and provisions of the New ~~Revolving Loans and New Revolving Credit Commitments~~ Advances shall be identical to the ~~2020 Revolving Credit Loans~~ Advances. Each Assignment and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (Acceptance or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments~~each Joinder Supplement, ~~later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing~~ as ~~agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement~~ applicable, may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Transaction Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, and consented to by the Borrower (such consent not to be unreasonably withheld), to effect the ~~provision~~ provisions of this Section ~~2.14~~2.21. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.), Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to Administrative ~~Agent~~ Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount, when taken together with the principal amount of Permitted Other Indebtedness outstanding at such time pursuant to Section 10.1(x)(i), not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). ~~Each such notice shall specify~~ In connection with the ~~date (each~~incurrence of any Indebtedness under this Section 2.14, ~~an “Increased Amount Date”) on which~~ at the request of the Administrative Agent, the Borrower ~~proposes~~ shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be ~~effective, which~~ in reasonable detail and shall ~~be a date not less than ten Business Days after~~ provide the ~~date on which such notice is delivered to the Administrative Agent~~calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as ~~applicable;~~ applicable (or, in connection with a Limited Condition Transaction, at the time of such Increased Amount Date or, if earlier, at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 11.1 or Section 11.5) and (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Additional Revolving Credit ~~Commitments pursuant to clause (iii)~~ Loans shall be designated a separate Series of ~~the definition~~ Additional Revolving Credit Loans for all purposes of ~~Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~this Agreement. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Credit Loans or Revolving Credit Commitments, as applicable, to such Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the ~~2018B Second~~ Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that clauses (~~or in the case~~ i) and (ii) shall not apply to up to $90,000,000 of New Term Loans as elected by the Borrower; provided, further, that ~~are Refinancing Commitments~~with respect to any New Term Loan, ~~no shorter than~~ only during the period commencing on the Closing Date and ending on the day before the date that is 18 months after the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans, respectively, in respect of the Initial Term Loans ~~being refinanced) and (iii) all other terms applicable~~ by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50%. (e) The terms and provisions of ~~each Series that differ from~~ any New Revolving Credit Commitments and the ~~existing Term~~ related New Revolving Credit Loans shall be ~~reasonably acceptable~~ identical to the ~~Administrative Agent (as evidenced~~ Class of Commitments and related Revolving Credit Loans subject to increase by ~~its execution of~~ such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that may be agreed to among the ~~applicable Joinder Agreement)~~Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. The terms and provisions of the ~~New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020~~ Additional Revolving Credit Loans and ~~the 2020~~ Additional Revolving Credit ~~Commitments~~Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that ~~New~~ (i) the applicable maturity date for the Additional Revolving Credit ~~Commitments may provide for (a) a commitment termination date that is later~~ Commitment of each Series shall be no earlier than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit ~~Commitments being refinanced~~Maturity Date; (ii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and ~~(b) fees and pricing as agreed between~~ amortization schedule applicable to any Additional Revolving Credit Loans shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder; and (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Additional Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Additional Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any ~~time~~ time, and from time to ~~time~~ time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be ~~identical to the Term Loans of the Existing Term Loan Class from which they are~~ on terms to be ~~converted except~~ agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below) ), and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any ~~New~~ Incremental Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments) (a “Revolving Credit Extension Request”~~Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which ~~terms~~ shall be ~~identical to those applicable to the Existing Revolving Credit Commitments from which they are~~ on terms to be ~~extended (~~agreed between the ~~“Specified Existing Revolving Credit Commitment”) except (x) all or any of~~ Borrower and the ~~final maturity dates of such~~ Lender providing Extended Revolving ~~Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y)~~Credit (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit ~~Commitments~~ Commitments”) and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment), in each case, to the extent provided in the applicable Extension ~~Amendment; provided that, notwithstanding~~ Amendment Notwithstanding anything to the contrary in this Section ~~2.14(f)~~ 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any ~~Old~~ Original Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Original Revolving Credit Commitments and (2) ~~assignments and participations of~~ no Extended Revolving Credit Commitments may be optionally permanently prepaid and ~~Extended Revolving Credit Loans shall be governed by~~ terminated prior to the ~~same assignment and participation provisions applicable to~~ date on which the Specified Existing Revolving Credit Commitments from which they were converted is permanently repaid in full and terminated, except in accordance with the ~~Revolving Credit Loans related to such Commitments set forth in~~ last sentence of Section ~~13.6~~5.1(a). No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, ~~New~~ Incremental Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)

Incremental Facilities. (ai) The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more tranches of term loans (the commitments thereto, the “New Term Loan Commitments”), and (ii) the Borrower may by written notice to Administrative Agent elect to request the establishment of one or more ~~(x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y)~~ increases in Series 2024 Revolving Credit Commitments (the “New Revolving Credit Commitments” ~~and,~~ or the “New Revolving Credit Commitments”; the New Revolving Credit Commitments together with the New Term Loan Commitments, collectively, the “New Loan Commitments”), in the case of clauses (a)(i) and (a)(ii) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate from the Closing Date and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default under Sections 11.1 and 11.5 shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Credit Loans, each of the conditions set forth in Section 7 7.1(b) and 7.2 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the -70- Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(c) and (b); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date ~~shall~~ may, as agreed to by the Borrower and the New Term Lenders making such New Term Loans, be ~~designated,~~ designated as a separate series (a “Series”) of New Term Loans or a part of an existing Series or Class of Term Loans, in each case for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments of the applicable Series are effected, subject to the satisfaction of the foregoing terms and conditions, (aA) ~~each of~~ the ~~Lenders~~ Borrower shall have made arrangements with the Administrative Agent to prepay certain Revolving Credit ~~Commitments shall assign~~ Loans on any Increased Amount Date pursuant to procedures as may be agreed by the Borrower and the Administrative Agent, and (B) each Lender with a New Revolving Credit Commitment (each, a “New Revolving ~~Loan~~ Credit Lender” or a “New Revolving Credit Lender”) ~~and each of the New Revolving Loan Lenders~~ shall ~~purchase from each of the Lenders~~ become a Lender with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments respect to the Revolving Credit ~~Commitments~~Commitment of the applicable Series and all matters relating thereto, and each Loan made thereunder (~~b) each~~ each, a “New Revolving Credit ~~Commitment~~ Loan” or a “New Revolving Credit Loan”) shall be deemed for all purposes a Revolving Credit ~~Commitment and each~~ Loan ~~made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to~~ of the ~~New Revolving Credit Commitment and all matters relating thereto~~applicable Series. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except~~ be as ~~otherwise~~ set forth herein or in the applicable Joinder Agreement~~, identical to one or more Classes of the existing Initial Term Loans~~; provided that (i) the ~~applicable New Term Loan Maturity Date~~ mandatory prepayments, other payments rights, the rate of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable ~~new~~ New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) Agreement and (~~iii~~ii) all ~~other~~ terms applicable to the New Term Loans of each Series ~~that differ from the existing Term Loans~~ shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The applicable Joinder Agreement for any New Term Loan shall be subject to customary provisions applicable to term loan facilities as determined by the applicable New Term Loan Lenders and the Borrower, including without limitation, provisions with respect to call protection and mandatory prepayments. The terms and provisions of the New Revolving Credit Loans and the New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the ~~2020~~ Revolving Credit Commitments~~; provided that~~ , respectively. New ~~Revolving Credit Commitments may provide for (a) a commitment termination date that is later than~~ Term Loan Lenders shall be included in the ~~commitment termination date~~ determination of the ~~2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments~~Required Lenders, ~~later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing~~ as ~~agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments~~applicable. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Laureate Education, Inc.), Credit Agreement

Incremental Facilities. (a) The ~~Borrower~~ Company may by written notice to the applicable Administrative Agent elect to request the establishment of one or more (x) ~~additional tranches of term loans~~ New Tranche B Term Loan commitments (~~the commitments thereto,~~ the “New Tranche B Term Loan Commitments”) and/or (y) ~~increases in~~ Additional Revolving Credit ~~Commitments~~ commitments (the “New Revolving Credit ~~Commitments~~Commitment” and, together with the New Tranche B Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $200,000,000 in the aggregate and not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the applicable Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $200,000,000 and all such New Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the ~~Borrower~~ Company proposes that the New Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the applicable Administrative Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments~~; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. ~~In each case, such~~ Such New Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Tranche B Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the Company and its Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 10.9 as of the last day of the most recently ended fiscal quarter after giving effect to such New Loan Commitments and any Investment to be consummated in connection therewith; (iv) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Company and the applicable Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (ivv) the ~~Borrower~~ Company shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (vvi) the ~~Borrower~~ Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the applicable Administrative Agent in connection with any such transaction. Any New Tranche B Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Tranche B Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and ~~conditions~~conditions and obtaining any required approval from any Governmental Authority, including the consent of Bank Negara Malaysia, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving Credit Loans will be held by existing Lenders with Revolving Credit ~~Lenders~~ Loans and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Tranche B Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Tranche B Term Loan Commitment (each, a “New ~~Term~~ Tranche B Loan Lender”) of any Series shall make a Loan to the ~~Borrower~~ Company (a “New Tranche B Term Loan”) in an amount equal to its New Tranche B Term Loan Commitment of such Series, and (ii) each New Tranche B Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Tranche B Term Loan Commitment of such Series and the New Tranche B Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Tranche B Term Loans and New Tranche B Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes of~~ the ~~existing Initial~~ Tranche B Term Loans; provided that (i) the applicable New Tranche B Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New Term Loan Maturity Date (or in~~ final maturity of the ~~case of New~~ Tranche B Term Loans ~~that are Refinancing Commitments, no earlier than that of~~ and the ~~Term Loans being refinanced) and~~ mandatory prepayment and other payment rights (other than scheduled amortization) of the New Tranche B Term Loans and the ~~existing~~ Tranche B Term Loans shall be ~~identical,~~ identical and (ii) the ~~fees~~Borrower, ~~pricing~~ the rate of interest and the amortization schedule applicable to the New Tranche B Term Loans of each Series shall be determined by the ~~Borrower~~ Company and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that ~~the weighted average life to maturity of all New Term Loans~~ such Borrower shall be ~~no shorter than~~ the ~~weighted average life to maturity of the 2018B Second New Term Loans (~~Company or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement)a Subsidiary Guarantor. The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative ~~Agent~~Agents, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Avago Technologies Manufacturing (Singapore) Pte. Ltd.), Credit Agreement (Avago Technologies LTD)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more ~~(x)~~ additional tranches of term loans (the commitments thereto, the “New Term ~~Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New~~ Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Term Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Term Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. In each case, such New Term Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, as applicable; , (ii) ~~both before and after giving effect to~~ the ~~making of any Series of~~ New Term ~~Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New~~ Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto.[reserved] (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “~~New Term~~ NewTerm Loan Lender”) of any Series shall make a Loan to the Borrower (a “~~New Term~~ NewTerm Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ then existing Initial Term Loans, (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans ~~(or~~ shall be determined by the Borrower and the Lenders thereunder; provided that solely in the case of New Term Loans ~~that are Refinancing Commitments, no shorter than that~~ incurred prior to the 18 month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans in respect of such New Term Loans ~~being refinanced) and (iii) all other terms applicable~~ exceeds the Effective Yield for LIBOR Loans in respect of the then existing Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans in respect of the New Term Loans ~~of each Series that differ from~~ minus 0.50%; and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and New Revolving Credit Commitments shall be identical to~~ Lenders if any covenants or other provisions are only applicable after the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit CommitmentsLatest Term Loan Maturity Date). (e) [reserved] (f) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Second Lien Credit Agreement (National Vision Holdings, Inc.), Second Lien Credit Agreement (National Vision Holdings, Inc.)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $1,500,000,000 in the aggregate and not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $1,500,000,000 and all such New Loan Commitments obtained ~~on or~~ prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to ~~the~~ Administrative Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments~~; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. ~~In each case, such~~ Such New Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the Borrower shall be in Pro Forma Compliance with the covenant set forth in Section 10.9 as of the last day of the most recently ended fiscal quarter after giving effect to such New Loan Commitments and any Investment to be consummated in connection therewith; (iv) the New Loan Commitments shall be effected pursuant to one or more ~~Joinder Agreements~~ New Loan Increase Joinders executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d) and (e); (ivv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; (vi) any New Loan Commitments and any New Term Loans and New Revolving Loans shall be denominated in Dollars; and (vvii) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving Credit Loans will be held by existing Lenders with Revolving Credit ~~Lenders~~ Loans and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable ~~Joinder Agreement~~New Loan Increase Joinder, identical to ~~one or more Classes of~~ the existing ~~Initial~~ Tranche B Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Tranche B Term Loan Maturity Date ~~(or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced)~~ and mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the existing Tranche B Term Loans shall be identical, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable New Loan Increase Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Tranche B Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable ~~Joinder Agreement~~New Loan Increase Joinder). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) The New Loan Commitments shall be effected by a joinder agreement (the “New Loan Increase Joinder”) substantially in the form of Exhibit M executed by the Borrower, the Administrative Agent and each Lender making such New Loan Commitment, in form and substance reasonably satisfactory to each of them. Each New Loan Increase Joinder ~~Agreement~~ may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Kinder Morgan Holdco LLC), Credit Agreement (Kinder Morgan Inc)

Incremental Facilities. ~~(a) The~~ Borrower may by written notice to Administrative Agent elect to request (A) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Loan Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (B) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an ~~aggregate~~ amount ~~not~~ such that Borrower and its Subsidiaries shall be in ~~excess~~ compliance, on a Pro Forma Basis after giving effect to such New Term Loans or New Revolving Loan Commitments and the application of the ~~Maximum Incremental Facilities Amount in the aggregate and~~ proceeds thereof, with a Secured Leverage Ratio of 2.50 to 1.00; provided, that any New Revolving Loan Commitment or New Term Loan Commitment shall not be less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent or ~~(y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ such lesser amount that represents all remaining availability under any limit set forth above in this Section 2.25), and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments shall be ~~effective~~effective and (B) the identity of each Lender or other Person that is an Eligible Assignee; provided that, ~~which~~ Issuing Bank shall have consented (such consent not to be ~~a date not less than ten Business Days after the date on which such notice is delivered~~ unreasonably withheld or delayed) to the ~~Administrative Agent. The Borrower may approach~~ allocation of New Revolving Loan Commitments to any ~~Lender~~ Eligible Assignee under clause (ii) of the definition thereof (each, a “New Revolving Loan Lender” or ~~any Person (other than a natural person~~“New Term Loan Lender,” as applicable) to ~~provide all or a~~ whom Borrower proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitments or New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.3(a) shall be satisfied; provided that, solely with respect to the effectiveness of New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any Permitted Acquisition consummated after the Amendment No. 5 Effective Date, the Borrower shall not be required to satisfy the conditions set forth in clause (iii) or (iv) of such Section 3.3(a); (3) Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such New Term Loans and the application of the proceeds thereof, with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments; (4) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable New Revolving Loan Lender or New Term Loan Lender, as the case may be, Borrower and Administrative ~~Agent~~Agent (it being understood that the only representations and warranties that shall be certified in the Joinder Agreement with respect to New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any Permitted Acquisition consummated after the Amendment No. 5 Effective Date shall be those representations and warranties set forth in the seventh paragraph of this Section 2.25), and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(d); (iv5) ~~the~~ Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; ~~and~~ (v6) ~~the~~ Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~. Any~~ ; and (7) in the case of any New Revolving Loan Commitments or New Term ~~Loans made~~ Loan Commitments effected on an Increased Amount Date from and after April 1, 2016, Borrower and its Subsidiaries shall be ~~designated~~in compliance, on a ~~separate series~~ Pro Forma Basis, with a Leverage Ratio as of the Increased Amount Date (~~a “Series”~~assuming in the case of any New Revolving Commitments, that the full amount of all outstanding Revolving Commitments, including New Revolving Commitments, are borrowed on such date), of 5.25 to 1.00; provided, further, that, (x) the effectiveness of New Term Loans ~~for all purposes~~ incurred to finance the Medicis Acquisition or the Bausch & Lomb Acquisition shall not be subject to Borrower’s compliance with clauses (1), (3) or (7) of ~~this Agreement; provided that~~ the foregoing proviso and (Ay) if the ~~use~~ effectiveness of ~~proceeds of such~~ New ~~Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the~~ Term Loans incurred and/or New Revolving Loan ~~Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality~~ Commitments established to finance any Permitted Acquisition consummated after the Amendment No. 10 Effective Date shall ~~apply~~ not be subject to ~~the effectiveness of such new Loan Commitments in lieu of the conditions set forth in~~ compliance with clauses (i1), (ii3) and ~~if applicable,~~ (~~v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii~~7) of the ~~definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b)~~ foregoing proviso. On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Loan Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Loan Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Loan Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto~~. (c)~~ . On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the~~ Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such ~~Series~~Series (unless the Joinder Agreement with respect to any Series of New Term Loans shall provide for the making of such Series of New Term Loans on a date subsequent to the applicable Increased Amount Date), and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. . Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof (dx) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the Tranche A New Term Loans ~~and New Term Loan Commitments~~ of any Series shall be, except with respect to pricing, amortization and maturity and except as otherwise set forth herein or in the ~~applicable~~ Joinder ~~Agreement~~Agreement and otherwise reasonably satisfactory to Administrative Agent, identical to ~~one or more Classes~~ the Tranche A Term Loans. The terms and provisions of the ~~existing Initial~~ Tranche B New Term Loans of any Series shall be, except with respect to pricing, amortization and maturity and except as otherwise set forth herein or in the Joinder Agreement and otherwise reasonably satisfactory to Administrative Agent, identical to the Tranche B Term Loans~~; provided that~~ . The terms and provisions of the New Revolving Loans shall be, except with respect to maturity, identical to the Revolving Loans. In any event (i) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the then-remaining weighted average life to maturity of the Tranche B Term Loans (other than with respect to a Tranche A New Term Loan, which shall have a weighted average life to maturity not shorter than the remaining weighted average life to maturity of the Tranche A Term Loans), (ii) the applicable New Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of the Tranche B Term Loans (other than with respect to a Tranche A New Term Loan, which shall have a maturity date not earlier than the ~~2018B Second New~~ Tranche A Term Loan Maturity ~~Date~~ Date), and (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (iiiii) the ~~fees, pricing and the amortization schedule~~ yield applicable to the New Term Loans of each Series shall be determined by ~~the~~ Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however (A) that the ~~weighted average life~~ yield applicable to ~~maturity of all New Term Loans shall be no shorter than~~ the ~~weighted average life to maturity of the 2018B Second~~ Tranche A New Term Loans (after giving effect to all upfront or in similar fees or original issue discount payable with respect to such Tranche A New Term Loans) shall not be greater than the ~~case~~ applicable yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Tranche A Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) plus 0.50% per annum unless the interest rate with respect to the Tranche A Term Loan is increased so as to cause the then applicable yield under this Agreement on the Tranche A Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) to equal the yield then applicable to the Tranche A New Term Loans (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche A New Term Loans) minus 0.50% per annum and (B) that ~~are Refinancing Commitments, no shorter than that of~~ the yield applicable to the Tranche B New Term Loans ~~being refinanced~~(after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche B New 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 Tranche B Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) plus 0.50% per annum unless the interest rate with respect to the Tranche B Term Loan is increased so as to cause the then applicable yield under this Agreement on the Tranche B Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) to equal the yield then applicable to the Tranche B New Term Loans (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche B New Term Loans) minus 0.50% per annum. For purposes of clause (iii) ~~all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution~~ of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (immediately preceding sentence, upfront or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b)~~ similar fees and ~~pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e)~~ original issue discount will be equated to interest rates based upon an assumed four-year average life. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14. (i) The Borrower may at~~ 2.25. Except as expressly set forth in this Section 2.25, New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any ~~time~~ Permitted Acquisition after the Amendment No. 5 Effective Date shall be entered into in accordance with this Section 2.25 and ~~from time~~ shall be subject to ~~time request~~ the terms and conditions hereof; provided that ~~all or a portion~~ as of the date of establishment of such New Term Loans incurred to finance the Medicis Acquisition or the Bausch & Lomb Acquisition, Borrower shall not be required to comply with the Secured Leverage Ratio set forth in the first paragraph of ~~any Class~~ this Section 2.25; provided that, as of such date, the representations and warranties set forth in Section 4.1(a) (~~an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal~~ solely with respect to ~~all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”~~due organization) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class4.1(b) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, solely with respect to the ~~Existing Term Loan Class from which~~ Joinder Agreement to be entered into with respect to such ~~Extended~~ New Term Loans ~~were converted~~and/or New Revolving Loan Commitments, ~~in each case~~ as ~~more particularly set forth in paragraph~~ applicable), 4.3 (~~iv) of this Section 2.14(f) below) and (y) (A) the interest margins~~ solely with respect to the ~~Extended~~ Joinder Agreement to be entered into with respect to such New Term Loans ~~may~~ and/or New Revolving Loan Commitments, as applicable), 4.4(a)(ii) (solely with respect to the Joinder Agreement to be ~~higher or lower than the interest margins for the~~ entered into with respect to such New Term Loans ~~of such Existing Term~~ and/or New Revolving Loan ~~Class and/or~~ Commitments, as applicable), 4.6 (~~B) additional fees may be payable~~ solely with respect to the ~~Lenders providing~~ Joinder Agreement to be entered into with respect to such ~~Extended~~ New Term Loans ~~in addition~~ and/or New Revolving Loan Commitments, as applicable), 4.15 (solely with respect to ~~or in lieu~~ regulation under the Investment Company Act of ~~any increased margins contemplated by~~ 1940), 4.16 (solely with respect to the ~~preceding clause~~ Joinder Agreement to be entered into with respect to such New Term Loans and/or New Revolving Loan Commitments, as applicable) and 4.23 (Asolely with respect to the PATRIOT Act), in each case, shall be true and correct in all material respects on and as of such date to the same extent as though made on and as of that date, except to the extent ~~provided~~ such representations and warranties specifically relate to an earlier date, in ~~the applicable Extension Amendment. No Lender~~ which case such representations and warranties shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time been true and ~~from time to time request that~~ correct in all ~~or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time~~ material respects on and as of such ~~request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”~~earlier date; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitmentprovided that, in each case, such materiality qualifier shall not be applicable to ~~the extent provided~~ any representations and warranties that already are qualified or modified by materiality in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)text thereof. (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)

Incremental Facilities. (a) The Borrowers may (on a joint and several basis), from time to time after the Closing Date, upon notice by the Borrower Representative to the Person appointed by the Borrower to arrange an incremental Facility (such Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by ~~written notice~~ the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed amount and the proposed currency denomination thereof, request (i) an increase in the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to ~~Administrative Agent elect~~ be increased) (a “Revolving Credit Commitment Increase”), (ii) an increase in any Term Loan Tranche then outstanding (which shall be on the same terms as, and become part of, the Term Loan Tranche proposed to ~~request~~ be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”), (iii) the ~~establishment~~ addition of one or more new revolving credit facilities to the Facilities (~~x) additional tranches of term loans (~~each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and the commitments ~~thereto~~thereof, the “New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities in such currency or currencies as the Borrowers identify in such notice to the Facilities (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term ~~Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments~~Commitment” ~~and,~~ and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term ~~Loan Commitments~~Commitment Increase, the “New Loan Commitments”), ) by an ~~aggregate~~ amount not ~~in excess~~ to exceed the sum of ~~the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as~~ (x) ~~may~~ a Dollar Amount of $375,000,000 (which amount shall be ~~approved~~ reduced dollar for dollar by the ~~Administrative Agent or~~ 2020 Incremental Euro Term Loans) (the “Cash-Capped Incremental Facility”), (y) ~~shall constitute~~ an unlimited amount (the ~~difference between~~ “Ratio-Based Incremental Facility”) so long as the Maximum First Lien Leverage Requirement is satisfied and (z) an amount equal to all voluntary prepayments of Term Loans made pursuant to Section 2.05(a) and voluntary prepayments of Revolving Credit Loans made pursuant to Section 2.05(a) to the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.06(a), in each case, to the extent not funded with the proceeds of long-term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility (including the Revolving Credit Facility)) (the “Prepayment-Based Incremental ~~Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date~~Facility”) ~~on which~~ (such amount, at any such time, the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments“Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) a Dollar Amount of $20,000,000 and (y) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments established pursuant to this Section 2.14 and Incremental Equivalent Debt incurred pursuant to Section 2.15, (A) the Borrowers shall be deemed to have used amounts under clause (z), if any, prior to utilization of amounts under clauses (x) and (y), and the Borrowers shall be deemed to have used amounts under clause (y) (to the extent permitted by the pro forma calculation of the First Lien Net Leverage Ratio required prior to the incurrence of such Ratio-Based Incremental Facility) prior to utilization of amounts under clause (x), and (B) New Loan Commitments pursuant to this Section 2.14 and Incremental Equivalent Debt pursuant to Section 2.15 may be incurred under both clauses (x) and (y) above, and proceeds from any such incurrence under clauses (x), (y) and (z) above may be utilized in a single transaction by first calculating the incurrence under clause (y) (without inclusion of any amounts utilized pursuant to clause (x) or (z)). (b) Any Lender ~~offered or~~ approached to ~~provide all or a portion of the~~ participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, with the consent of the Administrative Agent, each L/C Issuer and the Swing Line Lender (to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans to such Eligible Assignee, which consent shall not be unreasonably withheld or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any New Loan Commitments, the Borrower must provide to the Administrative Agent the documentation providing for such New Loan Commitments. (c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Loan ~~Commitment~~Facility or New Revolving Facility is added in accordance with this Section 2.14, the Incremental Arranger and the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein pursuant to the documentation related to such New ~~Loan Commitments shall become effective as~~ Term Facility or New Revolving Facility. As of the Increase Effective Date, in the case of an increase to an existing Term Loan Tranche, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable ~~Increased Amount~~ amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrowers and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date~~; provided that~~ . (d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no ~~Default or~~ Event of Default ~~shall~~ (subject to Section 1.02(i)) would exist ~~on such Increased Amount Date before or~~ after giving effect to such increase, (ii) (A) in the case of any increase of the Revolving Tranche, (1) the final maturity shall be the same as the Maturity Date applicable to the Revolving Credit Facility, (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required and (3) the terms and documentation applicable to the Revolving Credit Facility shall apply, (B) in the case of any New Revolving Facility, (1) the final maturity shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility and (2) no amortization or mandatory commitment reduction prior to the Maturity Date applicable to the Revolving Credit Facility shall be required, (C) in the case of any increase of a Term Loan ~~Commitments~~Tranche, the final maturity of the Term Loans, New Term Loans or Specified Refinancing Term Loans increased pursuant to this Section shall be no earlier than the Latest Maturity Date for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining weighted average life of, any other outstanding Term Loans, New Term Loans or Specified Refinancing Term Loans, as applicable; ~~(ii) both before~~ provided, that Extendable Bridge Loans and ~~after giving effect to the making of any Series of~~ Specified New Term Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and, with respect to Extendable Bridge Loans and the Specified New Term Loans, the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, and (D) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans and the Specified New Term Loans, such New Term Facility shall have a final maturity no earlier than the then Latest Maturity Date of any Term Loan Tranche and the Weighted Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing Term Loan Tranche, (iii) except with respect to All-in Yield and as set forth in subclause (D) above with respect to final maturity and Weighted Average Life to Maturity, or otherwise agreed with the Incremental Arranger in the documentation relating to such New Term Facility or New Revolving ~~Loans~~Facility, ~~each~~ any such New Term Facility or New Revolving Facility shall have terms reasonably satisfactory to the Incremental Arranger; provided, that (x) to the extent such terms are more favorable to the existing Lenders than comparable terms existing in the Loan Documents, such terms may be, as determined by the Borrowers in consultation with the Administrative Agent, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements, including, for the avoidance of doubt, at the option of the ~~conditions set forth~~ Borrower, any increase in ~~Section 7 shall be satisfied; (iii)~~ the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New ~~Loan Commitments shall~~ Term Facility to achieve fungibility with such existing Term Facility and (y) otherwise, may be ~~effected pursuant~~ incorporated if reasonably satisfactory to ~~one or more Joinder Agreements executed~~ the Borrower, the Incremental Arranger and ~~delivered by~~ the ~~Borrower and~~ Administrative Agent, and ~~each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d);~~ (iv) to the ~~Borrower~~ extent reasonably requested by the Incremental Arranger, the Incremental Arranger shall ~~make any payments required~~ have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section ~~2.11~~ 6.12, 6.14 and/or Section 6.16 with respect to Holdings and the Borrowers and each material Subsidiary Guarantor that is organized in ~~connection with~~ a jurisdiction for which local counsel to the ~~New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by~~ Administrative Agent in ~~connection with any~~ such ~~transaction~~jurisdiction advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (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). ~~Any~~ Notwithstanding the foregoing, the conditions precedent to each such increase or New ~~Term Loans made on an Increased Amount Date~~ Loan Commitment shall be ~~designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if~~ agreed to by the ~~use of proceeds of~~ Lenders providing such increase or New Loan ~~Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders~~Commitment, as applicable, ~~customary “SunGard” limited conditionality shall apply~~ and the Borrowers. (e) On the Increase Effective Date with respect to a Revolving Tranche, (x) each Revolving Credit Lender immediately prior to such increase or incurrence will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “~~New~~ Revolving ~~Loan~~ Commitment Increase Lender”) ), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of ~~the New Revolving Loan Lenders shall purchase from each of the Lenders with~~ such Revolving Credit ~~Commitments, at the principal amount thereof~~ Lender’s participations hereunder in outstanding L/C Advances and ~~in the applicable currency(ies),~~ Swing Line Loans such ~~interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order~~ that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in L/C Advances and (ii) participations hereunder in Swing Line 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 ~~assignments~~ Revolving Credit Lender’s Revolving Credit Commitment and ~~purchases~~(y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ~~will be held~~ being prepaid and any costs incurred by ~~existing Revolving Credit Lenders and New Revolving Loan Lenders ratably~~ any Lender in accordance with ~~their Revolving Credit Commitments after giving effect~~ Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the ~~addition~~ transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such Term Loan Tranche will participate proportionately in each then outstanding Borrowing of Term Loans under the Term Loan Tranche. (f) (i) Any New Revolving Facility and New Term Facility shall rank pari passu in right of payment, have no more guarantees as, and be unsecured, secured either on a first lien “equal and ratable” basis with the other Facilities or on a “junior” basis, in each case over the same (or less) Collateral that secures the Facilities (and in each case, the application of any proceeds of the Collateral securing such New Revolving ~~Credit Commitments~~ Facility or New Term Facility shall be subject to intercreditor arrangements that are reasonably satisfactory to the ~~Revolving Credit Commitments~~Incremental Arranger and, ~~(b) each~~ if such Incremental Arranger is not the Administrative Agent, the Administrative Agent, but if unsecured or secured on a “junior” basis to the other Facilities, such New Revolving ~~Credit Commitment~~ Facility or New Term Facility shall be ~~deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”)~~ documented in an agreement that is separate from this Agreement; provided that the foregoing shall in any event be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the ~~satisfaction of the foregoing terms~~ Guaranty and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identicalSecurity Principles, (ii) the ~~fees, pricing and the amortization schedule applicable to the~~ New Term ~~Loans~~ Facility or New Revolving Facility, as applicable, shall, for purposes of ~~each Series shall~~ prepayments, be ~~determined by~~ treated substantially the ~~Borrower~~ same as (and ~~the applicable new Lenders and shall be set forth~~ in ~~each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be~~ any event no ~~shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of~~ more favorably than) the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Facility or Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder AgreementFacility, as the case may be, ~~with respect to~~ unless the ~~Existing Term Loan Class from which such Extended Term Loans were converted,~~ Borrowers otherwise elect (but in ~~each case as~~ any event no more ~~particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower~~ favorably than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit CommitmentsLoans, as applicable, on and (iii) (A) prior to the twenty-four-month anniversary of the Second Amendment Effective Date, with respect to any pari passu New Term Loans denominated in Dollars that are not Specified New Term Loans and which have a ~~pro rata basis based on~~ maturity date less than two years after the ~~amount of~~ Maturity Date applicable to the Initial Term Loans, ~~Revolving Credit Commitments,~~ the All-in Yield applicable to such New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment Term Loans shall be ~~treated identically to all other Old Revolving Credit Commitments for purposes of~~ determined by the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended Borrowers and the ~~related obligations to make Swingline Loans~~ Lenders providing such New Term Facility and ~~issue Revolving Letters of Credit may~~ shall not be comore than 50 basi

Appears in 2 contracts

Sources: Fifth Amendment (Ortho Clinical Diagnostics Holdings PLC), Amendment (Ortho Clinical Diagnostics Holdings PLC)

Incremental Facilities. (a) The Borrower may by written notice to the Administrative Agent elect to request the establishment of (i) one or more ~~(x)~~ additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”), by(ii) ~~and/or~~ one or more new revolving credit commitments or unsecured revolving credit commitments (~~y) increases in Revolving Credit Commitments (~~any such new commitments, the “New Revolving Credit Commitments”), or (iii) one or more new pari passu notes (any such new notes, the “Incremental Notes” ~~and,~~ and together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by in an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 25,000,00025 million individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower ~~may approach~~ shall specify the identity of each Eligible Assignee (and any ~~Lender or any Person (other than a natural person~~existing Lender) to ~~provide all or a~~ whom the Borrower proposes any portion of such New Loans Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; ~~provided~~ provided, however, that (A) any existing Lender ~~offered or~~ approached to provide all or a portion of the New ~~Loan~~ Loans Commitments may elect or decline, in its sole discretion, to provide a all or any portion of such New ~~Loan Commitment~~Loans Commitments and (B) any Eligible Assignee that is not an existing Lender shall be approved by the Administrative Agent and the Borrower. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any ~~Series of~~ New ~~Term~~ Loans ~~or New Revolving Loans~~Commitments, each of the conditions set forth in Section 7 4.01 shall be satisfied; (iii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~3.01(e); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; ~~and~~ (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~. Any~~ ; and (vi) the interest rates and amortization schedule applicable to any New ~~Term~~ Loans ~~made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if~~ under the ~~use of proceeds of such~~ New Loan Commitments ~~is an acquisition or investment permitted under this Agreement, if agreed among~~ shall be determined by the Borrower and the New ~~Revolving~~ Term Loan Lenders ~~and/or~~ or New ~~Term Loan~~ Revolving Credit Lenders, as applicable, ~~customary “SunGard” limited conditionality shall apply~~ thereunder; provided that if the applicable interest rate margin relating to the ~~effectiveness of~~ New Loans Commitments (the “IncrementalNew Loan Applicable Rate”) exceeds the Applicable Rate relating to the existing Loans by more than 0.25%, the Applicable Rate relating to the existing Loans shall be adjusted to be equal to the IncrementalNew Loan Applicable Rate minus 0.25%; provided, further, that in determining such ~~new Loan Commitments in lieu of the conditions set forth in clauses (i)~~applicable interest rates, (iix) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount original issue discount (“~~Refinancing Commitments~~OID”), ) or upfront fees (which shall be deemed to constitute like amount of OID) paid by the ~~conditions set forth~~ Borrower to the Lenders under the New Loans Commitments and the existing Loans in ~~clauses~~ the initial primary syndication thereof shall be included and equated to interest rate (iwith OID being equated to interest based on an assumed four-year life to maturity) and (iiy) ~~above~~ any changes to the interest rate “floor” shall ~~not apply~~be deemed to be an equivalent change in the applicable interest rate margin for the New Loans Commitments. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments ~~of any Series~~ are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any ~~Series~~ series shall make a ~~Loan~~ loan (which may be in the form of cash or through a cashless rollover of existing Loans of another Class hereunder) to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan ~~Commitment of such Series~~Commitment, and (ii) each New Term Loan Lender ~~of any Series~~ shall become a Lender hereunder with respect to the New Term Loan Commitment ~~of such Series~~ and the New Term Loans of such ~~Series~~ series made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any Class are effected through the establishment of one or more New Revolving Credit Commitments, subject to the satisfaction of the terms and conditions in this Section 2.12, (i) each Lender with a New Revolving Credit Commitment (each, a “New Revolving Credit Lender”) of such Class shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “New Loan”) in an amount equal to its New Revolving Credit Commitment of such Class and (ii) each New Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such Class and the New Revolving Credit Loans of such Class made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to any of the Loans and be treated as the same Class as any of such Loans. (dc) The terms and provisions of ~~the~~ any New Term Loans and New Term Loan Commitments ~~of any Series~~ shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing ~~Initial Term~~ initial Loans; provided that (i) the applicable New ~~Term~~ Loan Maturity Date of each ~~Series~~ series shall be no earlier than the ~~2018B Second New Term Loan~~ Maturity Date ~~(or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced)~~ and mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the ~~existing Term~~ Initial Loans shall be identical, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each ~~Series~~ series shall be determined by the Borrower and the applicable ~~new~~ New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ Initial Loans, (iii) the New Term Loans ~~(or~~ shall rank pari passu in right of payment and of security with the ~~case of New Term~~ Initial Loans ~~that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced)~~ and (~~iii~~iv) all other terms applicable to the New Term Loans of each ~~Series~~ series that differ from the existing ~~Term~~ Initial Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of ~~the~~ any New Revolving Credit Loans and New Revolving Credit Commitments shall be ~~identical to~~ reasonably determined by the ~~2020 Revolving Credit Loans~~ Borrower and the ~~2020 Revolving Credit Commitments; provided that~~ New Revolving Credit ~~Commitments may provide for~~ Lenders. (ad) As a ~~commitment termination date that is later than~~ condition precedent to such increase, the ~~commitment termination date~~ Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the ~~2020 Revolving Credit Commitments~~ Additional Loans EffectiveIncreased Amount Date signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase and (ii) in the case of ~~New Revolving Credit Commitments that~~ the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and, the other Loan Documents and the IntermediateCo Unsecured Guarantee are ~~Refinancing Commitments, later than the commitment termination date~~ true and correct in all material respects on and as of the ~~Revolving Credit Commitments being refinanced~~Additional Loans EffectiveIncreased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) ~~fees~~ of Section 5.06 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and ~~pricing as agreed between the Borrower~~ (b), respectively, of Section 6.01 and ~~the Lenders providing~~ (B) no Event of Default or Default exists immediately before or immediately after giving effect to such ~~New Revolving Credit Commitments~~addition. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and, the other Loan Documents and the ~~other Credit Documents~~ IntermediateCo Unsecured Guarantee as may be necessary or appropriate, in the opinion of the Administrative ~~Agent~~Agent and the Borrower, to effect the provision of this Section ~~2.14~~2.12. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Toys R Us Inc), Credit Agreement (Toys R Us Inc)

Incremental Facilities. (a) ~~The~~ At any time after the later to occur of (i) the date of delivery of the annual financial statements for the Fiscal Year of the Borrower ~~may~~ ending December 31, 2013 pursuant to Section 8.03(c) and the Compliance Certificate therefor pursuant to Section 8.03(d) and (ii) the consummation of a Qualified MLP IPO, the Borrower may, by written notice to the Administrative ~~Agent elect~~ Agent, request that either (A) prior to ~~request~~ the Working Capital Commitment Termination Date, the total Working Capital Commitments be increased (any such increase, the “New Working Capital Commitment”) or (B) prior to the Maturity Date, the establishment of one or more ~~(x) additional tranches of~~ new term ~~loans (the~~ loan commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan ~~Lender~~Commitment”), in each case, by an aggregate amount not to exceed the then existing Incremental Facility Amount at such time. Such notice shall set forth (A) the amount of ~~any Series shall make a Loan to~~ the ~~Borrower (a “~~requested New Working Capital Commitments and/or New Term ~~Loan”)~~ Loan Commitments (which shall be in an minimum increments of $1,000,000 and a minimum amount of $5,000,000 or the amount equal to ~~its~~ the then remaining Incremental Facility Amount), (B) the date on which such New Working Capital Commitments and/or New Term Loan ~~Commitment~~ Commitments are requested to become effective (which shall be not less than 10 Business Days nor more than 45 days after the date of such ~~Series~~notice), and (iiC) shall offer each Working Capital Lender the opportunity to provide New ~~Term Loan~~ Working Capital Commitment by its applicable Pro Rata Share of the proposed New Working Capital Commitment and/or offer each Lender the opportunity to provide any of ~~any Series shall become a Lender hereunder with respect to~~ the New Term Loan ~~Commitment of~~ Commitments. Each such ~~Series~~ Lender shall, by notice to the Borrower and the ~~New Term Loans of such Series made pursuant thereto. (d) The terms and provisions~~ Administrative Agent given not more than 15 days after the date of the Administrative Agent’s notice, either agree to provide New ~~Term Loans and~~ Working Capital Commitments and/or New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the ~~Term Loans of any Class~~ offered amount (each Lender so agreeing being an “~~Existing~~ Increasing Lender”) or decline to provide New Working Capital Commitments and/or New Term Loan ~~Class~~Commitments (and any Lender that does not deliver such a notice within such period of 15 days shall be deemed to have declined to provide New Working Capital Commitments and New Term Loan Commitments) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”) ). In the event that, on the 15th day after the Administrative Agent shall have delivered a notice pursuant to the second sentence of this paragraph, there shall not be ~~converted~~ Increasing Lenders who have agreed to ~~extend~~ provide New Working Capital Commitments and/or New Term Loan Commitments by an aggregate amount sufficient to accommodate the ~~scheduled maturity date(s) of any payment of principal with respect to all~~ request by the Borrower, then the Borrower may arrange for one or ~~a portion of any principal amount of such Term Loans~~ more banks or other entities (any such ~~Term Loans~~ bank or other entity being called an “Augmenting Lender”), which ~~have been so converted~~may include any Lender, ~~“Extended Term Loans”) and~~ to provide ~~for other terms consistent with this Section 2.14(f). In order~~ New Working Capital Commitments or New Term Loan Commitments in an aggregate amount equal to ~~establish any Extended Term Loans~~the unsubscribed amount; provided, however, that each Augmenting Lender (who is not then a current Lender) shall be an Eligible Assignee and shall be subject to the ~~Borrower shall provide a notice to~~ prior written approval of the Administrative Agent (~~who~~ to the extent New Working Capital Commitments are being provided) (which approvals shall ~~provide~~ not be unreasonably withheld or delayed), and the Borrower (which approval shall not be unreasonably withheld or delayed) and each Augmenting Lender shall execute all such documentation (including a ~~copy of~~ Joinder Agreement) as the Administrative Agent shall reasonably specify to evidence its New Working Capital Commitment, New Term Loan Commitment and/or its status as a Lender hereunder (as applicable) and shall share pro rata in the Collateral as a Secured Party. Any such ~~notice~~ New Working Capital Commitments and/or New Term Loan Commitments may be made in an amount that is less than the request by the Borrower if the Borrower is unable to ~~each~~ arrange for, or chooses not to arrange for, Augmenting Lenders. Any Increasing Lender or Augmenting Lender that receives a portion of the ~~Lenders of the applicable Existing~~ New Working Capital Commitment or New Term Loan ~~Class~~Commitment (as applicable) ~~(a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which~~ in accordance with this Section 5.10 shall be ~~identical~~ bound by and entitled to the ~~Term Loans~~ benefits of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, this Agreement with respect to the ~~Existing~~ full amount of its share of the New Working Capital Commitment or New Term Loan ~~Class from which such Extended~~ Commitment (as applicable). For avoidance of doubt, nothing herein shall be deemed to require any Lender to increase the amount of its Commitments. (b) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any New Working Capital Commitments or New Term ~~Loans were converted, in each case as more particularly set forth in paragraph (iv) of~~ Loan Commitments pursuant to this Section ~~2.14(f~~5.10, the outstanding Working Capital Advances (if any) ~~below~~are held by the Working Capital Lenders in accordance with their new applicable Pro Rata Share. This may be accomplished at the reasonable discretion of the Administrative Agent, following consultation with the Borrower, by causing Non-Increasing Lenders to assign portions of their outstanding Working Capital Advances to Increasing Lenders and/or Augmenting Lenders. Any prepayment or assignment described in this clause (b) shall be subject to Section 12.03(c), but shall otherwise be without premium or penalty. (c) Notwithstanding the foregoing, no New Working Capital Commitments or New Term Loan Commitments shall become effective under this Section 5.10 unless (i) on the date of the Borrower’s request to provide New Working Capital Commitments and/or New Term Loan Commitments, all Delayed Draw Term Commitments shall have been utilized or expired, (ii) the proceeds of any New Term Loan Commitments shall be used in accordance with Section 5.09(e), (iii) the Administrative Agent shall have received a certificate of a Responsible Officer certifying and showing (yin reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Administrative Agent) that (A) the ~~interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or~~ conditions set forth in this Section 5.10(c) have been satisfied and (B) ~~additional fees may~~ the Borrower would be ~~payable~~ in compliance with the Financial Covenants as of the most recently completed Measurement Period ending prior to the ~~Lenders providing~~ incurrence of such ~~Extended Term Loans in addition~~ Debt for which the financial statements and certificates required by Section 8.03(b) or 8.03(c) were required to be delivered, after giving pro forma effect to such New Working Capital Commitments or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing New Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, ~~any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request~~ as applicable (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (assuming that any such ~~Existing Revolving Credit~~ Commitments ~~which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”~~are fully drawn) and to ~~provide for~~ any other ~~terms consistent with this~~ event occurring after such Measurement Period as to which pro forma recalculation pursuant to Section ~~2.14(f). In order to establish any Extended Revolving Credit Commitments,~~ 8.04(d) is appropriate as if such transactions had occurred as of the ~~Borrower shall provide a notice to the Administrative Agent (who shall provide a copy~~ first day of such ~~notice to each~~ Measurement Period, (iv) the pro forma Leverage Ratio as of the ~~Lenders~~ last day of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms most recently ended Fiscal Quarter shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related not exceed 2.50:1.00 after giving effect to such New Working Capital Commitments ~~set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans~~ or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its New Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Loan Commitments, as ~~applicable~~applicable (assuming that any such Commitments are fully drawn) and calculated pursuant to Section 8.04(d), ~~shall notify~~ (v) the ~~Administrative Agent (an “Extension Election”) on or prior to~~ pro forma Contracted Coverage Ratio as of the date ~~specified in~~ of extension of any such ~~Extension Request of the amount of its~~ New Working Capital Commitments and/or New Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Loan Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment applicable (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be cothe

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (Enviva Partners, LP), Credit and Guaranty Agreement (Enviva Partners, LP)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more ~~(x)~~ additional tranches of term loans (the commitments thereto, the “New Term ~~Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New~~ Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Term Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Term Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. In each case, such New Term Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, as applicable (unless, in connection with an acquisition or investment subject to customary “Sungard” or “certain funds” conditionality, otherwise agreed to by the Lenders providing such Incremental Loans), as applicable; , (ii) ~~both before and after giving effect to~~ the ~~making of any Series of~~ New Term ~~Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New~~ Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto.[Reserved] (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ Initial Term Loans, (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans ~~(or~~ shall be determined by the Borrower and the Lenders thereunder; provided that solely in the case of New Term Loans ~~that are Refinancing Commitments, no shorter than that~~ incurred prior to the 18 month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans in respect of such New Term Loans ~~being refinanced) and (iii) all other terms applicable~~ exceeds the Effective Yield for LIBOR Loans in respect of the Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans in respect of the Initial Term Loans is equal to the Effective Yield for LIBOR Loans in respect of the New Term Loans ~~of each Series that differ from~~ minus 0.50%; and (iv) to the ~~existing~~ extent such terms and documentation are not consistent with the Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and New Revolving Credit Commitments shall be identical to~~ Lenders if any covenants or other provisions are only applicable after the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit CommitmentsLatest Term Loan Maturity Date). (e) [Reserved] (f) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date).[Reserved] (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request~~ Loans converted into Extended Term ~~Loans or Extended Revolving Credit Commitments, as applicable~~Loans, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term ~~Loans or Extended Revolving Credit Commitments, as applicable~~Loans. In the event that the aggregate amount of ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ requested pursuant to the Extension Request, ~~Term~~ Loans ~~or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments~~ of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ on a pro rata basis based on the amount of ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans included in each such Extension Election. (iv) Extended Term Loans shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(g)(iv) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender contrary in ~~respect of Swingline Loans under~~ this Section ~~2.1(c~~2.14(g) and ~~Letters~~ without limiting the generality or applicability of ~~Credit under Article 3~~Section 13.1 to any Section 2.14 Additional Amendments, ~~except that the applicable~~ any Extension Amendment may provide ~~that the Swingline Maturity Date~~ for additional terms and/or ~~the Revolving Letter of Credit Maturity Date may be extended and the related obligations~~ additional amendments other than those referred to ~~make Swingline Loans and issue Revolving Letters of Credit may be co~~or contemplated above (any such additional amendment, a “

Appears in 2 contracts

Sources: Second Lien Credit Agreement (BrightView Holdings, Inc.), Second Lien Credit Agreement (BrightView Holdings, Inc.)

Incremental Facilities. (a) The ~~Borrower~~ Borrowers may by written notice to the Administrative Agent elect to request prior to the Term Loan Maturity Date, the establishment of term loan commitments under one or more new term loan tranches (~~x) additional tranches of~~ any such term ~~loans (the commitments thereto~~loan commitment, ~~the~~ a “New Term Loan ~~Commitments~~Commitment”; any Loan made in respect thereof, a “New Term Loan”) ~~and/or~~ in amounts that are (yi) ~~increases~~ not to exceed, in ~~Revolving Credit Commitments (~~the ~~“New Revolving Credit Commitments” and, together with the~~ aggregate for all New Term Loan Commitments, ~~the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate~~ $50,000,000 and (ii) individually not less than $~~100,000,000 individually~~ 20,000,000 (or ~~such~~ any lesser amount ~~as (x) may be~~ that is approved by the Administrative ~~Agent or (y~~Agent) ~~shall constitute the difference between the Maximum Incremental Facilities Amount~~ and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “~~Increased Amount~~ New Term Loan Date”) on which the ~~Borrower proposes~~ Borrowers propose that the New Term Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ five Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (B) the identity of each Lender or ~~any~~ Affiliate of a Lender or other Person that is consented to by the Administrative Agent (~~other than a natural person~~such consent not to be unreasonably withheld or delayed) to ~~provide all or a~~ whom the Borrowers propose any portion of such New Term Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a ~~New Loan Commitment. In each case,~~ portion of such New Term Loan ~~Commitments~~ Commitments. Such New Term Loan Commitments, as applicable, shall become effective as of ~~the applicable Increased Amount~~ such New Term Loan Date; provided that (i1) no ~~Default or Event of~~ Default shall exist on such ~~Increased Amount~~ New Term Loan Date before or after giving effect to such New Term Loan Commitments, as ~~applicable~~the case may be; (ii2) ~~both before and after giving effect to the making of any Series of~~ such New Term ~~Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New~~ Loan Commitments shall be effected pursuant to one or more Incremental Facility Joinder Agreements executed and delivered by the ~~Borrower and~~ Loan Parties to the Administrative ~~Agent,~~ Agent and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d)~~2.20; (iv3) the ~~Borrower~~ Borrowers shall make any payments required pursuant to Section ~~2.11~~ 2.16 in connection with such New Term Loan Commitments; (4) the applicable Borrower shall be in pro forma compliance with the Financial Covenants after giving effect to such New Term Loan Commitments and the New Term Loans to be made thereunder and the application of proceeds therefrom as if made and applied on such date; (5) the interest rate for any New Term Loan ~~Commitments~~shall be determined by the Borrowers and the applicable Lender; provided that if the Yield in respect of any New Term Loans exceeds the Yield with respect to the Term Loan by more than 50 basis points, ~~as applicable~~the Applicable Percentage with respect to the Term Loan shall be automatically increased on the New Term Loan Date with respect to the Term Loan so that the Yield for the Term Loan is equal to the Yield with respect to such New Term Loans minus 50 basis points; (6) the final maturity date of any New Term Loans shall be no earlier than the Term Loan Maturity Date; and (v7) the ~~Borrower~~ Borrowers shall deliver or cause to be delivered any ~~legal opinions or~~ other documents reasonably requested by Administrative Agent in connection with any such transaction. Once any New Term Loan Commitments shall become effective as of their respective New Term Loan Dates in accordance with this Section 2.24(a), extensions of credit may be made thereunder in accordance with the terms of the applicable Incremental Facility Joinder Agreement without any additional conditions thereto; provided that, with respect to each such extension of credit, each of the conditions set forth in Sections 4.02 shall be satisfied. Any New Term Loans made pursuant to New Term Loan Commitments that become effective on ~~an Increased Amount Date~~ a New Term Loan Date, as well as the Term Loans, shall be ~~designated,~~ designated a separate series (a “Series”) of ~~New Term~~ Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) ~~On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction~~ The Administrative Agent shall notify Lenders promptly upon receipt of the ~~foregoing terms~~ Borrowers’ notice of each New Term Loan Date and ~~conditions~~in respect thereof the New Term Loan Commitments, ~~(a) each of~~ the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of providing such New ~~Revolving Credit~~ Term Loan Commitments ~~to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment~~ and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating theretotheir respective interests therein. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term ~~Loans of the Existing Term Loan Class from which they are to be converted~~ Loan, except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice otherwise reasonably satisfactory to the Administrative Agent or explicitly permitted by this Section 2.24. (~~who shall provide a copy of such notice to each~~ d) Each of the ~~Lenders~~ parties hereto hereby agrees that, upon the effectiveness of any Incremental Facility Joinder Agreement, this Agreement shall be deemed amended to the ~~applicable Class of Existing Revolving Credit Commitments~~extent (but only to the extent) ~~(a “Revolving Credit Extension Request”) setting forth~~ necessary to reflect the ~~proposed~~ terms of the ~~Extended Revolving Credit~~ New Term Loan Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of evidenced thereby. Any such ~~Extended Revolving Credit Commitments~~ deemed amendment may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments memorialized in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed writing by the Administrative ~~Agent~~Agent with the Borrower’s consent (not to be unreasonably withheld) ~~prior~~ and furnished to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coparties hereto.

Appears in 2 contracts

Sources: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)

Incremental Facilities. (a) The ~~Borrower may~~ Company may, by written notice to ~~Administrative Agent~~ the Agent, each Issuing Bank and the Swing Line Lender, elect to request prior to the ~~establishment~~ Revolving Commitment Termination Date, an increase to a Class of ~~one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in~~ then-existing Revolving ~~Credit~~ Commitments (~~the~~ any such increase, “New Revolving ~~Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan~~ Commitments”), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $100,000,000 in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the ~~Administrative~~ Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $100,000,000 and all such New ~~Loan~~ Revolving Commitments obtained ~~on or~~ prior to such date), and integral multiples of $1,000,000 in excess of that amount. Each such notice shall specify (x) the date (each, an “Increased Amount Date”) on which the ~~Borrower~~ Company proposes that the New ~~Loan~~ Revolving Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the ~~Administrative~~ Agent~~. The Borrower may approach any~~ , (y) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Loan Lender”) to ~~provide all or a~~ whom the Company proposes any portion of such New Revolving Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations and (z) the Class of Revolving Commitments the Company proposes to increase; provided that the Agent may elect or decline to arrange such New Revolving Commitments in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New ~~Loan~~ Revolving Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Commitment. ~~In each case, such~~ Such New ~~Loan~~ Revolving Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided ~~that~~ that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Revolving Commitments~~, as applicable;~~ ; (ii) ~~both before~~ the Company and its Subsidiaries shall be in pro forma compliance with Sections 7.11, 7.12 and 7.14 as of the last day of the most recently ended Fiscal Quarter after giving effect to ~~the making of any Series of New Term Loans or~~ such New Revolving ~~Loans, each of the conditions set forth in Section 7 shall be satisfied;~~ Commitments; (iii) ~~the~~ all New ~~Loan~~ Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Company, the New Revolving Loan Lender and ~~Administrative~~ the Agent, ~~and~~ each of which shall be recorded in the Register and each New Revolving Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~3.01(e); ; (iv) the ~~Borrower~~ Company shall make any payments required pursuant to Section ~~2.11~~ 3.05(b) in connection with the New ~~Loan~~ Revolving Commitments~~, as applicable; and~~ ; (v) the ~~Borrower~~ Agent, each Issuing Bank and the Swing Lien Lender shall have consented to any New Revolving Loan Lender (such consent shall not be unreasonably withheld) and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by ~~Administrative~~ the Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) [Reserved]. (c) On any Increased Amount Date on which New Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, , (ai) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by then-existing Revolving ~~Credit~~ Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Commitments to the Revolving ~~Credit~~ Commitments, , (bii) each New Revolving ~~Credit~~ Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan ~~and~~ and (ciii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Commitment and all matters relating thereto~~. (c) On any Increased Amount Date on which any New Term Loan Commitments~~ . For the avoidance of ~~any Series are effective~~doubt, ~~subject to~~ the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving ~~Credit~~ Commitments shall be ~~identical~~ documented solely as an increase, and shall be identical, to the ~~2020~~ Class of then-existing Revolving ~~Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit~~ Commitments ~~may provide for~~ so increased. (ad) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments[Reserved]. (e) ~~Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion~~ The Agent shall notify Lenders promptly upon receipt of the ~~Administrative Agent, to effect the provision~~ Company’s notice of ~~this Section 2.14.~~ each Increased Amount Date and in respect thereof (i) ~~The Borrower may at any time~~ the New Revolving Commitments and ~~from time to time request that all or a portion of~~ the ~~Term Loans of any Class~~ New Revolving Loan Lenders and (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (xii) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of respective interests in such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were convertedRevolving ▇▇▇▇▇▇’s Revolving Loans, in each case ~~as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect~~ subject to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins assignments contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date2.15(c). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (CNO Financial Group, Inc.), Credit Agreement (CNO Financial Group, Inc.)

Incremental Facilities. (a) The Borrower ~~may by written notice~~ may, at any time and from time to ~~Administrative Agent~~ time, elect to request the establishment of (x) one or more ~~(x)~~ additional tranches of term ~~loans~~ loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments ~~thereto~~for additional term loans of the same Class or a separate Class, collectively, the “~~New~~ Incremental Term ~~Loan~~ Commitments”) ~~and/or~~ or (y) ~~increases in Revolving Credit Commitments~~ one or more tranches of revolving credit facilities (the “~~New~~ Incremental Revolving ~~Credit~~ Commitments~~” and~~”, together with the ~~New~~ Incremental Term ~~Loan~~ Commitments, the “~~New Loan~~ Incremental Commitments”; and the loans thereunder, “Incremental Loans”), by in an aggregate principal amount not in excess of the then-available Maximum Incremental Facilities Amount in at the ~~aggregate~~ time of incurrence thereof and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent in its reasonable discretion or (y) shall constitute the ~~difference between the~~ then-available Maximum Incremental Facilities Amount ~~and all~~ at such ~~New Loan Commitments obtained on or prior to such date~~time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any existing Lender or any ~~Person (other than a natural person)~~ Additional Lender to provide all or a portion of the ~~New Loan~~ Incremental Commitments; provided that any Lender offered or approached to provide all or a portion of the ~~New Loan~~ Incremental Commitments may elect or decline, in its sole discretion, to provide ~~a New Loan~~ an Incremental Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Commitment; provided, further, that the Administrative Agent shall have consented to such Additional Lender’s providing of the Incremental Commitments to the extent such consent, if any, would be required under Section 13.6(b) in connection with an assignment of Term Loans or Commitments to such Additional Lender. In each case, such ~~New Loan~~ Incremental Commitments shall become effective as of the ~~applicable~~ date determined by the Borrower (the “Increased Amount Date”); provided ~~that~~ that, (i) (x) other than as described in the immediately succeeding clause (y), no ~~Default or~~ Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such ~~New Loan Commitments~~Incremental Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Commitment is being provided in connection with a Permitted Acquisition or similar Investment, ~~as applicable;~~ or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Specified Default shall exist on such Increased Amount Date, (ii) ~~both before~~ in connection with any incurrence of Incremental Loans or establishment of Incremental Commitments, there shall be no requirement for the Borrower to bring down the representations and ~~after giving effect~~ warranties under the Credit Documents unless requested by the lenders providing such Incremental Loans or Incremental Commitments (subject to ~~the making~~ waiver by such lenders of any ~~Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied;~~ such requirement) and (iii) the ~~New Loan~~ establishment of Incremental Commitments or the incurrence of Incremental Loans shall be effected pursuant to one or more ~~Joinder Agreements~~ amendments (each, an “Incremental Amendment”) to this Agreement executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e)~~; (iv) the Borrower shall make~~ . For all purposes of this Agreement, any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Incremental Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase (such new or existing series of Term Loans, each, a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On The terms and conditions of the Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent; provided that (i) such Incremental Revolving Commitments may have a maturity that is shorter than the Maturity Dates of the Term Loans but such maturity shall be longer than the maturity date of the Initial ABL Facility, (ii) the pricing, interest rate margins, discounts, premiums, interest rate floors and fees of such Incremental Revolving Commitments shall be determined by the Borrower and the lender(s) thereunder and shall not be subject to any ~~Increased Amount Date on which New~~ “most-favored nation” provisions (including under Section 2.14(d)(iv) below), (iii) such Incremental Revolving ~~Credit~~ Commitments may have sub-facilities for letters of credit and swingline loans, (iv) lenders providing such Incremental Revolving Commitments shall be included in the definition of “Required Lenders”, (v) if such Incremental Revolving Commitments benefit from a financial covenant, the Term Loans shall not be required to enjoy the same benefit of such financial covenant and they shall cross accelerate (instead of cross default) to a breach of such financial covenant, (vi) customary amendments to the definition of “Maximum Incremental Facilities Amount” may be made to permit any repayment of loans under Incremental Revolving Commitments accompanied with permanent terminations of such Incremental Revolving Commitments to be added to clause (2) of such definition, (vii) no Subsidiary (other than a Guarantor) is an obligor of such Incremental Revolving Commitments and (viii) if secured, such Incremental Revolving Commitments are ~~effected, subject~~ not secured by any assets other than all or any portion of the Collateral or any Liens other than Liens that are pari passu with or junior to the ~~satisfaction of~~ Liens securing the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating theretoObligations. (c) On any Increased Amount Date on which any ~~New~~ Incremental Term ~~Loan~~ Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing applicable terms and conditions, (i) each Lender with ~~a New~~ an Incremental Term ~~Loan~~ Commitment ~~(each, a “New Term Loan Lender”)~~ of any Series shall make a ~~Loan~~ term loan to the Borrower (a an “~~New~~ Incremental Term Loan”) in an amount equal to its ~~New~~ Incremental Term ~~Loan~~ Commitment of such Series, and (ii) each ~~New Term Loan~~ Lender of any Series shall become a Lender hereunder with respect to the ~~New~~ Incremental Term ~~Loan~~ Commitment of such Series and the ~~New~~ Incremental Term Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Term Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Term Loans. (d) The terms and provisions of any Incremental Term Commitments and the ~~New~~ respective related Incremental Term Loans, in each case effected pursuant to a Term Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans subject to such increase; provided that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and ~~New~~ other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term ~~Loan~~ Commitments and the respective related Incremental Term Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Commitments may be paid in connection with such Incremental Term Commitments. The terms and provisions of any Incremental Term Commitments and the respective related Incremental Term Loans of any Series not effected pursuant to a Term Loan Increase shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the applicable ~~Joinder Agreement, identical to one or more Classes of~~ Incremental Amendment as determined by the ~~existing Initial Term Loans~~Borrower; provided ~~that~~ that: (i) the applicable ~~New~~ Incremental Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New Term Loan~~ Latest Maturity Date ~~(or in~~ with respect to the ~~case of New~~ Initial Term ~~Loans~~ Loans, provided that ~~are Refinancing Commitments, no earlier than that~~ the requirements of the ~~Term Loans being refinanced~~foregoing clause (i) ~~and mandatory prepayment rights (other than scheduled amortization) of~~ shall not apply to any customary bridge facility so long as the ~~New Term Loans and the existing Term Loans shall~~ Indebtedness into which such customary bridge facility is to be ~~identical,~~ converted complies with such requirements; (ii) the ~~fees, pricing and~~ Weighted Average Life to Maturity of the ~~amortization schedule~~ applicable ~~to the New~~ Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans; (iii) the Incremental Term Loans (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans are unsecured or rank junior in right of payment or as to security with the Obligations, such Incremental Term Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any Obligations outstanding under this Agreement and, if secured, shall not be secured by assets of the Credit Parties other than Collateral (and, unless secured on a pari passu basis with the Obligations, shall be subject to a subordination agreement (if payment subordinated) and/or the Applicable Intercreditor Agreement); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule (subject to clauses (i) and (ii) above) applicable to any Incremental Term Loans shall be determined by the Borrower and the ~~applicable new Lenders~~ lender(s) thereunder; provided, however, that, if the Yield, in respect of any Incremental Term Loans that (w) rank pari passu in right of payment and ~~shall be set forth~~ security with the Initial Term Loans, (x) are incurred on or prior to the date that is 12 months after the Closing Date and (y) have a maturity date that is less than two years after the Initial Term Loan Maturity Date as of the date of funding thereof, exceeds the Yield in ~~each applicable Joinder Agreement; provided that~~ respect of any Initial Term Loans by more than 0.50%, then the ~~weighted average life to maturity~~ Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in respect of ~~all New~~ such Initial Term Loans shall be ~~no shorter than~~ adjusted so that the ~~weighted average life~~ Yield in respect of such Initial Term Loans is equal to ~~maturity~~ the Yield in respect of such Incremental Term Loans minus 0.50%; provided, further, to the extent any change in the Yield of the ~~2018B Second New~~ Initial Term Loans is necessitated by this clause (or iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, the increased Yield in the ~~case of New~~ Initial Term Loans ~~that are Refinancing Commitments, no shorter than that of~~ shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term ~~Loans being refinanced) and~~ Loans; and (~~iii~~v) all other terms ~~applicable to the New~~ of any Incremental Term Loans ~~of each Series that~~ (other than as described in clauses (i), (ii), (iii) and (iv) above) may differ from the ~~existing~~ terms of the Initial Term Loans ~~shall be reasonably acceptable to the Administrative Agent (as evidenced~~ if agreed by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the ~~Lenders~~ lender(s) providing such ~~New Revolving Credit Commitments~~Incremental Term Loans. (e) The Administrative Agent and the Lenders hereby consent to the consummation of the transactions contemplated by this Section 2.14 and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14. Each ~~Joinder Agreement~~ Incremental Amendment may, without the consent of any other Lenders, (x) effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent~~Agent and the Borrower, to effect the ~~provision~~ provisions of this Section ~~2.14.~~ 2.14 and (iy) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Incremental Revolving ~~Credit~~ Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related add provisions solely applicable to such ~~Existing~~ Incremental Revolving ~~Credit~~ Commitments (~~any such Existing~~ including provisions relating to extensions and refinancings of Incremental Revolving ~~Credit Commitments which have been so extended, “Extended Revolving Credit~~ Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Avaya Holdings Corp.), Term Loan Credit Agreement (Avaya Holdings Corp.)

Incremental Facilities. ~~(a)~~ The ~~Borrower~~ Borrowers may by written notice to the Administrative Agent elect to ~~request~~ request, prior to the ~~establishment of one or more~~ Maturity Date, an increase to the existing Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term Loan~~ Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $20.0 million in the aggregate and not less than $~~100,000,000~~ 5.0 million individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative ~~Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ Agent), and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $1.0 million in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the ~~Borrower proposes~~ Borrowers propose that the New ~~Loan~~ Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (B) the identity of each Lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (each, a “New Lender”) to whom the Borrowers propose any ~~Person (other than a natural person)~~ portion of such New Commitments be allocated and the amounts of such allocations; provided that the Borrowers shall first approach the Lenders to provide all ~~or a~~ of the New Commitments in accordance with their Applicable Percentages (excluding for this purpose the Commitment of any Lender that declines to provide any portion of the New ~~Loan~~ Commitments) prior to approaching any other Person that is an eligible assignee pursuant to Section 13.6(b) (and no such Person shall be offered to provide the New Commitments on terms (including with respect to upfront fees and other economic terms) that are more favorable to such Person than the terms offered to the existing Lenders) and no Lender shall provide a New Commitment unless the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented thereto; provided further that any Lender ~~offered or~~ approached to provide all or a portion of the New ~~Loan~~ Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Commitment. ~~In each case, such~~ Such New ~~Loan~~ Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments~~, as applicable~~; (~~ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~2) the New ~~Loan~~ Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrowers, the Lender providing the New Commitment and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(c); (iv3) the ~~Borrower~~ Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New ~~Loan~~ Commitments~~, as applicable~~; ~~and~~ (v4) the ~~Borrower~~ Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such ~~transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series~~ transaction and (~~a “Series”~~5) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and after giving effect to the New ~~Revolving Loan Lenders and/or New Term Loan Lenders~~Commitments, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall Availability is not ~~apply. (b)~~ less than zero. On any Increased Amount ~~Date on which New Revolving Credit Commitments are effected~~Date, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with ~~Revolving Credit~~ Commitments shall assign to each ~~Lender with a~~ of the New ~~Revolving Credit Commitment (each~~Lenders, ~~a “New Revolving Loan Lender”)~~ and each of the New ~~Revolving Loan~~ Lenders shall purchase from each of the Lenders with ~~Revolving Credit~~ Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving Credit Loans will be held by existing Lenders with Revolving Credit ~~Lenders~~ Loans and New ~~Revolving Loan~~ Lenders ratably in accordance with their ~~Revolving Credit~~ respective Commitments after giving effect to the addition of such New ~~Revolving Credit~~ Commitments to the ~~Revolving Credit~~ Commitments, (b) each New ~~Revolving Credit~~ Commitment shall be deemed for all purposes a ~~Revolving Credit~~ Commitment and each Loan made thereunder ~~(a “New Revolving Loan”)~~ shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New ~~Revolving Loan~~ Lender shall become a Lender with respect to the New ~~Revolving Credit~~ Commitment and all matters relating thereto~~. (c) On any~~ . The Administrative Agent shall notify the Collateral Agent and the Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date ~~on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms~~ and ~~conditions,~~ in respect thereof (iy) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New ~~Term Loan Commitment of such Series~~ Commitments and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the ~~revolving credit commitment fee rate with respect to the Extended~~ respective interests in such Lender’s Revolving Credit ~~Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment~~Loans, in each ~~case,~~ case subject to the ~~extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in~~ assignments contemplated by this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)Section. (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (Railamerica Inc /De), Credit Agreement (Railamerica Inc /De)

Incremental Facilities. (a) The Borrower ~~may by written notice to Administrative Agent elect to request the establishment of~~ and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Commitments (any such new or increased Commitments, “Incremental Commitments”) by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (x) ~~additional tranches~~ the amount of ~~term loans (the commitments thereto, the “New Term Loan Commitments”) and/or~~ such Incremental Commitments and (y) ~~increases in Revolving Credit Commitments~~ the applicable Increased Facility Closing Date (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments~~)); provided that (i) with respect to any ~~Lender offered or approached~~ Increased Facility Closing Date, the Incremental Commitments shall be in a minimum amount of $10,000,000, (ii) the aggregate amount of Incremental Commitments obtained after the Closing Date pursuant to ~~provide all or a portion~~ this Section 2.24 shall not exceed the greater of (x) $100,000,000 and (y) the ~~New Loan~~ amount by which the Borrowing Base exceeds the Commitments and (iii) Incremental Commitments may ~~elect~~ be made no more than two times after the Closing Date (or ~~decline,~~ such greater number as may be agreed by the Administrative Agent in its sole discretion). No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to ~~provide~~ become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. (c) Unless otherwise agreed or otherwise directed by the Administrative Agent, on each Increased Facility Closing Date, the Borrower shall borrow Revolving Loans under the relevant Incremental Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan ~~Commitment~~(and, in the case of Term Benchmark Loans, of each Term Benchmark Borrowing) which would then have been outstanding from such Lender if (i) each such Type or Term Benchmark Borrowing had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Term Benchmark Borrowing requested to be so borrowed or effected had been proportionately increased. ~~In each case~~The Adjusted Term SOFR Rate applicable to any Term Benchmark Borrowing borrowed pursuant to the preceding sentence shall equal the Adjusted Term SOFR Rate then applicable to the Term Benchmark Loans of the other Lenders in the same Term Benchmark Borrowing (or, until the expiration of the then-current Interest Period, such ~~New Loan~~ other rate as shall be agreed upon between the Borrower and the relevant Lender). (d) [Reserved]. (e) It shall be a condition precedent to the availability of any Incremental Commitments ~~shall become effective as of the applicable Increased Amount Date; provided~~ that (i) no Default or Event of Default shall ~~exist on such Increased Amount Date before or after giving effect~~ have occurred and be continuing immediately prior to ~~such New Loan Commitments, as applicable; (ii) both before~~ and immediately after giving effect to the making of ~~any Series of New Term Loans or New Revolving Loans~~such Incremental Commitments, ~~each of~~ (ii) the ~~conditions~~ representations and warranties set forth in ~~Section 7~~ each Loan Document shall be ~~satisfied;~~ true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Increased Facility Closing Date immediately prior to and immediately after giving effect to the making of such Incremental Commitments, except to the extent expressly made as of an earlier date, in which case they shall be so true and correct as of such earlier date and (iii) the ~~New Loan Commitments~~ Borrower shall have delivered such legal opinions, board resolutions, secretary’s certificate, officer’s certificate and other documents as shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Abl Credit Agreement (TTM Technologies Inc), Abl Credit Agreement (TTM Technologies Inc)

Incremental Facilities. (a) The Borrower ~~may by written notice to Administrative Agent elect to request the establishment of~~ and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Commitments (any such new or increased Commitments, “Incremental Commitments”) by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (x) ~~additional tranches~~ the amount of ~~term loans (the commitments thereto, the “New Term Loan Commitments”) and/or~~ such Incremental Commitments and (y) ~~increases in Revolving Credit Commitments~~ the applicable Increased Facility Closing Date (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments~~)); provided that (i) with respect to any ~~Lender offered or approached~~ Increased Facility Closing Date, the Incremental Commitments shall be in a minimum amount of $10,000,000, (ii) the aggregate amount of Incremental Commitments obtained after the Closing Date pursuant to ~~provide all or a portion of the New Loan~~ this Section 2.24 shall not exceed $50,000,000 and (iii) Incremental Commitments may ~~elect~~ be made no more than two times during the term of this Agreement (or ~~decline,~~ such greater number as may be agreed by the Administrative Agent in its sole discretion). No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to ~~provide~~ become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. (c) Unless otherwise agreed or otherwise directed by the Administrative Agent, on each Increased Facility Closing Date, the Borrower shall borrow Revolving Loans under the relevant Incremental Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan ~~Commitment~~(and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. ~~In each case~~The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such ~~New Loan~~ other rate as shall be agreed upon between the Borrower and the relevant Lender. (d) [Reserved]. (e) It shall be a condition precedent to the availability of any Incremental Commitments ~~shall become effective as of the applicable Increased Amount Date; provided~~ that (i) no Default or Event of Default shall ~~exist on such Increased Amount Date before or after giving effect~~ have occurred and be continuing immediately prior to ~~such New Loan Commitments, as applicable; (ii) both before~~ and immediately after giving effect to the making of ~~any Series of New Term Loans or New Revolving Loans~~such Incremental Commitments, ~~each of~~ (ii) the ~~conditions~~ representations and warranties set forth in ~~Section 7~~ each Loan Document shall be ~~satisfied;~~ true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Increased Facility Closing Date immediately prior to and immediately after giving effect to the making of such Incremental Commitments, except to the extent expressly made as of an earlier date, in which case they shall be so true and correct as of such earlier date and (iii) the ~~New Loan Commitments~~ Borrower shall have delivered such legal opinions, board resolutions, secretary’s certificate, officer’s certificate and other documents as shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Abl Credit Agreement (TTM Technologies Inc), Abl Credit Agreement (TTM Technologies Inc)

Incremental Facilities. (a) The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”) and/or (yprior to the Revolving Commitment Termination Date) ~~increases in~~ an increase to the existing Revolving ~~Credit~~ Commitments (any such increase, the “New Revolving ~~Credit~~ Loan Commitments~~” and~~”) the aggregate amount of all such increased commitments and new loans, together with any Permitted Incremental Equivalent Debt incurred at or prior to such time, not to exceed the ~~New Term Loan Commitments,~~ greater of (1) $500,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed 3.50:1.00 (calculated on a pro forma basis as of the last day of the most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “~~New Loan Commitments~~Incremental Cap”)~~, by~~ . Any such increased commitment or new loan shall be in an ~~aggregate~~ amount ~~not in excess of the Maximum Incremental Facilities Amount in the aggregate and~~ not less than $~~100,000,000~~ 25,000,000 individually ~~(or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (a) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ five (5) Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (b) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Loan Lender” or “New Term Loan Lender,” as applicable) to ~~provide all or a~~ whom the Borrower proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Loan Commitments or New Term Loan Commitments in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.02 shall be satisfied; (iii) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.07 (calculated on a pro forma basis as of the last day of the most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof); (iv) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrower, each New Revolving Loan Lender or New Term Loan Lender, as applicable, and the Administrative Agent, ~~and~~ each of which shall be recorded in the ~~Register~~ Register, and each New Revolving Loan Lender or New Term Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(c); (ivv) the Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; and (vvi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (bi) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (aA) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Commitments, (bB) each of the Revolving Lenders shall automatically and without further act be deemed to have assigned to each of the New Revolving Loan Lenders, and each such New Revolving Loan Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Letters of Credit will be held by existing Revolving Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Loan Commitments to the Revolving Commitments, (C) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (cD) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (cii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (iA) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such ~~Series,~~ Series and (iiB) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (c) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans subject to the assignments contemplated by this Section. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder ~~Agreement~~Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Tranche A Term Loans (in the case of a Non-Institutional Incremental Facility) or the Tranche B Term Loans (in the case of an Institutional Incremental Facility). The terms and provisions of the New Revolving Loans shall be identical to ~~one or more Classes of~~ the ~~existing Initial Term~~ Revolving Loans~~; provided that~~ . In any event (i) (A) the ~~applicable~~ weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Tranche B Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second~~ Latest Maturity Date; provided that the Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Tranche A Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or in longer than the ~~case of New Term Loans that are Refinancing Commitments, no earlier than that~~ weighted average life to maturity of the Tranche A Term ~~Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical~~Loans, (ii) the ~~fees, pricing and the amortization schedule~~ Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable ~~new~~ New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the ~~weighted average life~~ event that (x) the Weighted Average Yield applicable to ~~maturity~~ a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Tranche A Term Facility, then the Applicable Margin that shall apply to the calculation of ~~all New~~ the interest rate on the Tranche A Term Loans shall, in the case of each Tier set forth in the table contained in the definition of “Applicable Margin,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Tranche A Term Facility, minus 0.50% or (y) the Weighted Average Yield applicable to an Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Tranche B Term Facility, then the Applicable Margin that shall apply to the calculation of the interest rate on the Tranche B Term Loans shall be ~~no shorter than~~ increased by an amount equal to the ~~weighted average life~~ difference between the Weighted Average Yield with respect to ~~maturity of~~ such Institutional Incremental Term Facility and the ~~2018B Second New~~ Weighted Average Yield on the Tranche B Term ~~Loans (or in the case of New Term Loans that are Refinancing Commitments~~Facility, ~~no shorter than that of the Term Loans being refinanced) and~~ minus 0.50%, (iii) ~~all other terms applicable to the~~ such New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving ~~Credit Commitments~~ Loans will rank pari passu in right of payment and of security with the other Obligations hereunder, and (iv) such New Term Loans and New Revolving Loans shall be ~~identical~~ guaranteed by the Guaranty. Notwithstanding anything to the ~~2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that~~ contrary in this Section 2.24, New ~~Revolving Credit~~ Term Loan Commitments may ~~provide for (a) a commitment termination date that is later than~~ also take the ~~commitment termination date~~ form of ~~the 2020 Revolving Credit Commitments (or in the case~~ an increase to an existing Class of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of ~~the~~ Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.24. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (Hologic Inc), Credit and Guaranty Agreement (Gen Probe Inc)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date ~~(or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced)~~ and mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the existing Initial Term Loans shall be identical, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ Initial Term Loans ~~(or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced)~~ and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Initial Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ 2016 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New 2016 Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be cocontinued so long as the Swingline Lender and/or the applicable Revolving Letter of Credit Issuer, as applicable, have consented to such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension). (iv) Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(f)(iv) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, established thereby) executed by the Loan Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans or Extended Revolving Credit Commitments in an aggregate principal amount that is less than $50,000,000. In addition to any terms and changes required or permitted by Section 2.14(f)(i), each Extension Amendment (x) shall amend the scheduled amortization payments pursuant to Section 2.5 or the applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Ex

Appears in 2 contracts

Sources: Credit Agreement (First Data Corp), Joinder Agreement (First Data Corp)

Incremental Facilities. ~~(a) The~~ Borrower may by written notice to Administrative Agent elect to request (A) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Loan Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (B) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an amount such that Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such New Term Loans or New Revolving Loan Commitments and the application of the proceeds thereof, with a Secured Leverage Ratio of 2.50 to 1.00; provided, that, the aggregate amount of any New Revolving Loan Commitments and/or Tranche A New Term Loan Commitments established after the Amendment No. 3 Effective Date may not ~~in excess of the Maximum Incremental Facilities Amount in the aggregate and~~ exceed $500,000,000; provided, further, any New Revolving Loan Commitment or New Term Loan Commitment shall not be less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent or ~~(y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ such lesser amount that represents all remaining availability under any limit set forth above in this Section 2.25), and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments shall be ~~effective~~effective and (B) the identity of each Lender or other Person that is an Eligible Assignee; provided that, ~~which~~ Issuing Bank shall have consented (such consent not to be ~~a date not less than ten Business Days after the date on which such notice is delivered~~ unreasonably withheld or delayed) to the ~~Administrative Agent. The Borrower may approach~~ allocation of New Revolving Loan Commitments to any ~~Lender~~ Eligible Assignee under clause (ii) of the definition thereof (each, a “New Revolving Loan Lender” or ~~any Person (other than a natural person~~“New Term Loan Lender,” as applicable) to ~~provide all or a~~ whom Borrower proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that GSLP may elect or decline to arrange such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitments or New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.3(a) shall be satisfied; provided that, solely with respect to the effectiveness of New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any Permitted Acquisition consummated after the Amendment No. 5 Effective Date, the Borrower shall not be required to satisfy the conditions set forth in clause (iii) or (iv) of such Section 3.3(a); (3) Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such New Term Loans and the application of the proceeds thereof, with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments; (4) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable New Revolving Loan Lender or New Term Loan Lender, as the case may be, Borrower and Administrative ~~Agent~~Agent (it being understood that the only representations and warranties that shall be certified in the Joinder Agreement with respect to New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any Permitted Acquisition consummated after the Amendment No. 5 Effective Date shall be those representations and warranties set forth in the seventh paragraph of this Section 2.25), and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(d); (iv5) ~~the~~ Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; ~~and~~ (v6) ~~the~~ Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement and (A7) ~~if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the~~ Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis, with a Leverage Ratio as of the Increased Amount Date (assuming in the case of any New Revolving Commitments, that the full amount of all outstanding Revolving Commitments, including New Revolving Commitments, are borrowed on such date), of 5.25 to 1.00; provided, further, that, (x) the effectiveness of New Term Loans incurred to finance the Medicis Acquisition or the Bausch & Lomb Acquisition shall not be subject to Borrower’s compliance with clauses (1), (3) or (7) of the foregoing proviso and (y) the effectiveness of New Term Loans incurred and/or New Revolving Loan ~~Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality~~ Commitments established to finance any Permitted Acquisition consummated after the Amendment No. 5 Effective Date shall ~~apply~~ not be subject to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to compliance with clause (~~iii~~1) of the ~~definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b)~~ foregoing proviso. On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Loan Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Loan Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Loan Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto~~. (c)~~ . On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the~~ Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such ~~Series~~Series (unless the Joinder Agreement with respect to any Series of New Term Loans shall provide for the making of such Series of New Term Loans on a date subsequent to the applicable Increased Amount Date), and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. . Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof (dx) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the Tranche A New Term Loans ~~and New Term Loan Commitments~~ of any Series shall be, except with respect to pricing, amortization and maturity and except as otherwise set forth herein or in the ~~applicable~~ Joinder ~~Agreement~~Agreement and otherwise reasonably satisfactory to Administrative Agent, identical to ~~one or more Classes~~ the Tranche A Term Loans. The terms and provisions of the ~~existing Initial~~ Tranche B New Term Loans of any Series shall be, except with respect to pricing, amortization and maturity and except as otherwise set forth herein or in the Joinder Agreement and otherwise reasonably satisfactory to Administrative Agent, identical to the Tranche B Term Loans~~; provided that~~ . The terms and provisions of the New Revolving Loans shall be, except with respect to maturity, identical to the Revolving Loans. In any event (i) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the then-remaining weighted average life to maturity of the Tranche B Term Loans (other than with respect to a Tranche A New Term Loan, which shall have a weighted average life to maturity not shorter than the remaining weighted average life to maturity of the Tranche A Term Loans), (ii) the applicable New Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of the Tranche B Term Loans (other than with respect to a Tranche A New Term Loan, which shall have a maturity date not earlier than the ~~2018B Second New~~ Tranche A Term Loan Maturity ~~Date~~ Date), and (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (iiiii) the ~~fees, pricing and the amortization schedule~~ yield applicable to the New Term Loans of each Series shall be determined by ~~the~~ Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however (A) that the ~~weighted average life~~ yield applicable to ~~maturity of all New Term Loans shall be no shorter than~~ the ~~weighted average life to maturity of the 2018B Second~~ Tranche A New Term Loans (after giving effect to all upfront or in similar fees or original issue discount payable with respect to such Tranche A New Term Loans) shall not be greater than the ~~case~~ applicable yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Tranche A Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) plus 0.50% per annum unless the interest rate with respect to the Tranche A Term Loan is increased so as to cause the then applicable yield under this Agreement on the Tranche A Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) to equal the yield then applicable to the Tranche A New Term Loans (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche A New Term Loans) minus 0.50% per annum and (B) that ~~are Refinancing Commitments, no shorter than that of~~ the yield applicable to the Tranche B New Term Loans ~~being refinanced~~(after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche B New 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 Tranche B Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) plus 0.50% per annum unless the interest rate with respect to the Tranche B Term Loan is increased so as to cause the then applicable yield under this Agreement on the Tranche B Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) to equal the yield then applicable to the Tranche B New Term Loans (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche B New Term Loans) minus 0.50% per annum. For purposes of clause (iii) ~~all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution~~ of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (immediately preceding sentence, upfront or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b)~~ similar fees and ~~pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e)~~ original issue discount will be equated to interest rates based upon an assumed four-year average life. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14. (i) The Borrower may at~~ 2.25. Except as expressly set forth in this Section 2.25, New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any ~~time~~ Permitted Acquisition after the Amendment No. 5 Effective Date shall be entered into in accordance with this Section 2.25 and ~~from time~~ shall be subject to ~~time request~~ the terms and conditions hereof; provided that ~~all or a portion~~ as of the date of establishment of such New Term Loans incurred to finance the Medicis Acquisition or the Bausch & Lomb Acquisition, Borrower shall not be required to comply with the Secured Leverage Ratio set forth in the first paragraph of ~~any Class~~ this Section 2.25; provided that, as of such date, the representations and warranties set forth in Section 4.1(a) (~~an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal~~ solely with respect to ~~all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”~~due organization) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class4.1(b) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, solely with respect to the ~~Existing Term Loan Class from which~~ Joinder Agreement to be entered into with respect to such ~~Extended~~ New Term Loans ~~were converted~~and/or New Revolving Loan Commitments, ~~in each case~~ as ~~more particularly set forth in paragraph~~ applicable), 4.3 (~~iv) of this Section 2.14(f) below) and (y) (A) the interest margins~~ solely with respect to the ~~Extended~~ Joinder Agreement to be entered into with respect to such New Term Loans ~~may~~ and/or New Revolving Loan Commitments, as applicable), 4.4(a)(ii) (solely with respect to the Joinder Agreement to be ~~higher or lower than the interest margins for the~~ entered into with respect to such New Term Loans ~~of such Existing Term~~ and/or New Revolving Loan ~~Class and/or~~ Commitments, as applicable), 4.6 (~~B) additional fees may be payable~~ solely with respect to the ~~Lenders providing~~ Joinder Agreement to be entered into with respect to such ~~Extended~~ New Term Loans ~~in addition~~ and/or New Revolving Loan Commitments, as applicable), 4.15 (solely with respect to ~~or in lieu~~ regulation under the Investment Company Act of ~~any increased margins contemplated by~~ 1940), 4.16 (solely with respect to the ~~preceding clause~~ Joinder Agreement to be entered into with respect to such New Term Loans and/or New Revolving Loan Commitments, as applicable) and 4.23 (Asolely with respect to the PATRIOT Act), in each case, shall be true and correct in all material respects on and as of such date to the same extent as though made on and as of that date, except to the extent ~~provided~~ such representations and warranties specifically relate to an earlier date, in ~~the applicable Extension Amendment. No Lender~~ which case such representations and warranties shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time been true and ~~from time to time request that~~ correct in all ~~or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time~~ material respects on and as of such ~~request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”~~earlier date; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitmentprovided that, in each case, such materiality qualifier shall not be applicable to ~~the extent provided~~ any representations and warranties that already are qualified or modified by materiality in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)text thereof. (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)

Incremental Facilities. (a) The Borrower ~~may by~~ may, at its option, from time to time on or after the Restatement Dollar Loan Availability Termination Date, obtain one or more additional term loans up to an aggregate principal amount of $50,000,000 (each, a “New Loan”), in each case upon at least four Business Days’ prior written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative ~~Agent or~~ Agent, which notice shall specify (yA) ~~shall constitute~~ the ~~difference between the Maximum Incremental Facilities Amount and all~~ requested amount of a New Loan, (B) if such New Loan ~~Commitments obtained on or prior~~ is intended to be fungible with any then-existing Class of Loans, the Class of which such ~~date). Each such notice shall specify the~~ New Loan will form a part and (C) date ~~(each, an “Increased Amount Date”)~~ on which the Borrower proposes ~~that the~~ to borrow such New Loan ~~Commitments shall~~ (such date, a “New Loan Borrowing Date”), and in connection therewith: (i) the Borrower may offer any New Loan to be ~~effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered~~ provided to the ~~Administrative Agent. The~~ Lenders (but no Lenders will be required to provide any such New Loan or will have the right to be offered to provide any such New Loan) and/or other Persons approved by the Borrower ~~may approach any~~ and, unless such Person is a Lender or ~~any Person~~ an Affiliate or an Approved Fund of a Lender, the Administrative Agent (~~other than~~ such approval not to be unreasonably withheld or delayed) on either a ~~natural person) to provide all~~ pro-rata or ~~a portion of~~ non-pro-rata basis as determined by the ~~New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline,~~ Borrower in its sole discretion; (ii) each of the representations and warranties set forth herein or in any other Loan Document shall be true and correct in all material respects immediately prior to, ~~to provide a New Loan Commitment. In each case~~and immediately after giving effect to, the borrowing of any such New ~~Loan Commitments shall become effective as of the applicable Increased Amount Date~~Loan; provided that (i1) any such representation or warranty which expressly relates to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, and any representation and warranty that is qualified by or subject to a Material Adverse Effect or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification or materiality) and (2) with respect to any New Loan in connection with a Limited Condition Investment, such representations and warranties shall only be required to be true and correct in all material respects on and as of the date of the applicable LCT Test Date; (iii) immediately prior to, and immediately after giving effect to, the borrowing of any such New Loan, no Default or Event of Default shall have occurred and be continuing (except that, with respect to any New Loan in connection with a Limited Condition Investment, the requirement pursuant to this clause (a)(iii) shall be that no Event of Default shall exist on at the applicable LCT Test Date and no Event of Default under Section 8.01(a) or 8.01(f) (solely with respect to the Borrower) shall exist as of the effectiveness of such ~~Increased Amount Date before or~~ Incremental Agreement in each case after giving effect to such New Loan); (iv) subject to the provisions of Section 1.11 with respect to any New Loan ~~Commitments~~in connection with a Limited Condition Investment, ~~as applicable; (ii) both before~~ immediately prior to, and immediately after giving effect to to, the ~~making~~ borrowing of any ~~Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the~~ such New Loan ~~Commitments shall be effected pursuant to one or more Joinder Agreements executed~~ and ~~delivered by~~ the ~~Borrower and Administrative Agent~~use of proceeds thereof, ~~and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv)~~ on a pro forma basis, the Borrower shall ~~make any payments required pursuant to Section 2.11~~ be in ~~connection~~ compliance with the ~~New Loan Commitments,~~ covenants in Section 7.11 as ~~applicable; and~~ of the then most recently ended fiscal quarter of the Borrower; (v) ~~the Borrower~~ no consent of any Lender shall ~~deliver or cause to~~ be ~~delivered any legal opinions or other documents reasonably requested by Administrative Agent~~ required in connection with any ~~such transaction. Any~~ increase in the Commitments in respect of any New ~~Term Loans made on an Increased Amount Date shall be designated~~Loan or the funding of its share of the New Loans, ~~a separate series~~ in each case in accordance with this Section 2.12(a); (vi) each Commitment in respect of any New Loan (a “~~Series~~New Commitment”) ~~of New Term Loans for all purposes of this Agreement; provided that~~ shall become effective when the Persons (Aincluding Lenders) ~~if the use of proceeds of~~ providing such New Loan ~~Commitments is an acquisition or investment permitted under this Agreement~~(such Lenders and other Persons, ~~if agreed among~~ the “Incremental Lenders”), the Borrower and the Administrative Agent shall have entered into a written agreement (each an “Incremental Agreement”) pursuant to which (A) each such Incremental Lender agrees to provide a New ~~Revolving~~ Commitment and to extend a New Loan ~~Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to~~ in the ~~effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and~~ amount specified therein (B) if each such Incremental Lender that is not then a Lender agrees to assume and accept the obligations and rights of a Lender hereunder, (C) the Borrower accepts such New Commitment and (D) a New Loan ~~Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause~~ Borrowing Date is specified; (~~iii~~vii) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the ~~definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”~~Borrower certifying compliance with the conditions specified in Section 2.12(a)(ii), ~~the conditions set forth in clauses (i~~Section 2.12(a)(iii) and Section 2.12(a)(iv); and (iiviii) ~~above~~ the principal amount of each New Loan shall be in an amount that is an integral multiple of $1,000,000 and not ~~apply~~less than $5,000,000. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Incremental Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent~~Agent and the Borrower, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.12. (c) Any New Loan: (i) ~~The Borrower~~ may at be pari passu with or junior to any ~~time and from time~~ then-existing Class of Loans in right of payment; (ii) shall not mature earlier than the Maturity Date; (iii) subject to ~~time request that all or a portion of the Term Loans of~~ any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice necessary adjustments reasonably acceptable to the Administrative Agent and the Borrower to make such New Loans fungible with any then-existing Class of Loans, shall not have a shorter Weighted Average Life to Maturity than any then-existing Loans (~~who~~ without giving effect to prepayments); (iv) shall ~~provide~~ have a ~~copy~~ 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 and original issue discounts as determined by the Borrower and the Incremental Lenders; provided, that with respect to New Loans that (A) are pari passu in right of payment with the Restatement Dollar Loans and Restatement Euro Loans, in the event that the All-In Yield for any such New Loans denominated in Dollars or denominated Euros is greater than the All-In Yield for the Restatement Dollar Loans or Restatement Euro Loans, respectively, by more than 0.50%, then the Applicable Rate for the Restatement Dollar Loans and Restatement Euro Loans, as applicable, shall be increased to the extent necessary so that the All-In Yield for such Loans is equal to the All-In Yield for such New Loans minus 0.50%; (v) to the extent pari passu in right of payment with any then-existing Restatement Dollar Loans and Restatement Euro Loans that require ratable prepayment, shall share ratably with such existing Loans, subject to the right of the Borrower to direct the application of voluntary prepayments and unless the Borrower and the Incremental Lenders providing the New Loans elect to share in such prepayments on a less than pro rata basis; (vi) shall not be (x) guaranteed or incurred by any Person that is not a Credit Party or (y) secured by any assets of the Borrower or any of its Subsidiaries unless this Agreement is amended in a form reasonably acceptable to the Administrative Agent and the Borrower so that the then-existing Loans are secured by such assets, which amendment shall not require the consent of the Lenders; (vii) may otherwise have terms and conditions different from those of the Restatement Dollar Loans and Restatement Euro Loans; provided, that (x) except with respect to matters contemplated by clauses (ii), (iii), (iv), (v) and (vi) above, the material terms of any New Loans shall not be materially more favorable (when taken as a whole) to the Incremental Lenders with respect to such Loans than the terms and conditions of the Restatement Dollar Loans and Restatement Euro Loans (when taken as a whole), as applicable, as reasonably determined by the Borrower, unless such differences are (1) reasonably satisfactory to the Administrative Agent, (2) applicable only after the then existing Maturity Date or (3) included in this Agreement pursuant to an amendment to benefit the then-existing Loans (which amendment shall not require the consent of the existing Lenders) (including, for the avoidance of doubt, at the option of the Borrower, any increase in the applicable interest rate margin or amount of amortization to make such New Loans fungible with such then-existing Loans), and (y) the documentation governing any New Loans may include any more restrictive terms so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended in a form reasonably acceptable to the Administrative Agent and the Borrower to include such more restrictive terms, which amendment shall not require the consent of the Lenders. (d) Each New Loan shall be deemed, for all purposes, a Loan. If any New Loans are intended to be fungible with any then-existing Class of Loans, then the terms and provisions of such ~~notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term~~ New Loans ~~to be established, which~~ shall be identical to the ~~Term~~ terms and provisions of such then-existing Class of Loans. The Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all such New Loans, when originally made, are included in each Borrowing of outstanding Loans of ~~the Existing Term~~ such then-existing Class on a pro rata basis. This may be accomplished by allocating a portion of each such New Loan ~~Class from which they are~~ to each such outstanding Borrowing on a pro rata basis. If any New Loan is to be ~~converted except (x)~~ allocated to an existing Interest Period for a Borrowing, then the ~~scheduled final maturity date~~ interest rate thereon for such Interest Period and the other economic consequences thereof shall be ~~extended and all or any of~~ as set forth in the Incremental Agreement. In addition, the scheduled amortization payments under Section 2.04 required to be made in respect of such then-existing Class of Loans after the making of such New Loans shall be ratably increased by the aggregate principal amount of ~~the Extended Term~~ such New Loans ~~may~~ and shall be ~~delayed to later dates than the scheduled amortization of principal of the Term~~ further increased for all Lenders holding Loans of such ~~Existing Term Loan~~ then-existing Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the ~~date on~~ extent necessary to avoid any reduction in the amortization payments to which such Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to were entitled before such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be corecalculation.

Appears in 2 contracts

Sources: Credit Agreement (Accelerant Holdings), Credit Agreement (Accelerant Holdings)

Incremental Facilities. (a) The Borrower ~~may~~ may, prior to the Term Loan Maturity Date, by written notice to the Administrative ~~Agent elect to~~ Agent, request the establishment of one or more ~~(x) additional tranches of term loans~~ Incremental Term Loan Commitments (the ~~commitments thereto, the~~ “~~New~~ Incremental Term Loan Commitments”) ~~and/or (y) increases~~ in ~~Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by~~ an aggregate amount for all such increased or newly established commitments not in excess of ~~the Maximum Incremental Facilities Amount in the aggregate and not less than~~ $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)50,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the ~~New~~ Incremental Term Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent~~. The Borrower may approach any~~ , (ii) the amount of the Incremental Term Loan Commitments being requested and (iii) the identity of each Lender or ~~any~~ other Person (each, an “Incremental Term Loan Lender”) to whom the Borrower proposes any portion of such Incremental Term Loan Commitments be allocated and the amounts of such allocations (it being agreed that any such Person other than a ~~natural person)~~ Lender must be an Eligible Assignee that is reasonably acceptable to ~~provide all or a portion of~~ the ~~New Loan Commitments~~Administrative Agent); provided that (A) GSLP or its respective Affiliates may elect (or decline) to arrange such Incremental Term Loan Commitments in their sole discretion (in which case the Borrower shall enter into a customary engagement letter on terms reasonably satisfactory to GSLP, taking into account market practices and conditions at the time), and (B) any Lender ~~offered or~~ approached to provide all or a portion of the ~~New~~ Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide a ~~New~~ Incremental Term Loan Commitment~~. In each case, such New~~ . (b) Such Incremental Term Loan Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such ~~New~~ Incremental Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any Series of ~~New~~ Incremental Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.2 shall be satisfied; (~~iii~~3) the ~~New~~ Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1 (or, prior to the delivery of any such financial statements, the Fiscal Quarter ended March 31, 2010) after giving effect to such Incremental Term Loan Commitments and to the Incremental Term Loans to be borrowed thereunder as if they had been made on the first day of each relevant period; (4) the Senior Secured Leverage Ratio shall not be greater than 4.00 to 1.00, as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1 (or, prior to the delivery of any such financial statements, the Fiscal Quarter ended March 31, 2010), in each case after giving effect to such Incremental Term Loan Commitments and to the Incremental Term Loans to be borrowed thereunder as if they had been made on the first day of each relevant period; (5) the Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more ~~Joinder~~ Incremental Term Loan Agreements executed and delivered by the ~~Borrower~~ Borrower, the Incremental Term Loan Lenders, as applicable, and the Administrative Agent, and each ~~of which~~ shall be recorded in the Register and each Incremental Term Loan Lender shall be subject to the requirements ~~set forth in~~ of Section ~~5.4(d~~2.20(d); (iv6) the Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the ~~New~~ Incremental Term Loan Commitments, as applicable; and (v7) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any ~~New~~ Incremental Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of ~~New~~ Incremental Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any ~~New~~ Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a New~~ Incremental Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to the Borrower (a an “~~New~~ Incremental Term Loan”) in an amount equal to its ~~New~~ Incremental Term Loan Commitment of such Series, and (ii) each ~~New~~ Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the ~~New~~ Incremental Term Loan Commitment of such Series and the ~~New~~ Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series. (d) The terms and provisions of the ~~New~~ Incremental Term Loans and ~~New~~ Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable Joinder~~ Incremental Term Loan Agreement, identical to ~~one or more Classes of~~ the ~~existing Initial~~ Term Loans~~; provided that~~ . In any event (i) the weighted average life to maturity of all Incremental Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Terms Loans, (ii) the applicable ~~New~~ Incremental Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Term Loan Maturity ~~Date~~ Date, and (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (iiiii) the ~~fees, pricing and the amortization schedule~~ Weighted Average Yield applicable to the ~~New~~ Incremental Term Loans of each Series shall not be ~~determined by the Borrower and~~ greater than the applicable ~~new Lenders and shall be set forth in each applicable Joinder Agreement; provided that~~ Weighted Average Yield payable pursuant to the ~~weighted average life~~ terms of this Agreement as amended through the date of such calculation with respect to ~~maturity of all New~~ Term Loans ~~shall be no shorter than~~ unless the ~~weighted average life~~ interest rate with respect to ~~maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of~~ the Term Loans ~~being refinanced) and (iii) all other terms~~ is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Term Loans to equal the Weighted Average Yield then applicable to the ~~New~~ Incremental Term ~~Loans of each Series that differ from the existing~~ Loans. Each Incremental Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Loan Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of ~~the~~ Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.24. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit and Guarantee Agreement (Telx Group, Inc.), Credit and Guarantee Agreement (Telx Group, Inc.)

Incremental Facilities. (a) The Parent Borrower on behalf of the Borrowers may by written notice to the Administrative Agent elect to request the establishment of one or more ~~(x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y)~~ increases in ~~Revolving Credit~~ Tranche A Commitments (the “New Revolving Credit Commitments~~” and, together with the New Term Loan Commitments, the “New Loan Commitments~~”), by an ~~aggregate~~ amount not in excess of the Maximum Incremental Facilities Amount in the aggregate from the Closing Date and not less than $~~100,000,000~~ 50,000,000 individually (or such lesser individual amount as ~~(x) may be approved by the Administrative Agent or (y)~~ shall constitute ~~the difference between~~ all remaining available amounts under the Maximum Incremental Facilities Amount ~~and all such New Loan Commitments obtained~~ on ~~or prior to~~ such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Parent Borrower proposes that the New ~~Loan~~ Revolving Credit Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Parent Borrower may approach any Lender or any other Person (other than a natural person) with the consent of the Administrative Agent (such consent not to be unreasonably withheld) to provide all or a portion of the New ~~Loan~~ Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Credit Commitment. In each case, such New ~~Loan~~ Revolving Credit Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Revolving Credit Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of ~~New Term Loans or New~~ Revolving Credit Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New ~~Loan~~ Revolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrowers and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); (iv) the Parent Borrower on behalf of the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New ~~Loan~~ Revolving Credit Commitments, as applicable; and (v) the Parent Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New ~~Term~~ Revolving Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New ~~Term Loans~~ Revolving Credit for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with ~~Revolving Credit~~ Tranche A Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with ~~Revolving Credit~~ Tranche A Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the ~~Revolving Credit~~ Tranche A Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the Revolving Credit~~ such Tranche A Loans will be held by existing ~~Revolving Credit~~ Tranche A Lenders and New Revolving Loan Lenders ratably in accordance with their ~~Revolving Credit~~ Tranche A Commitments after giving effect to the addition of such New Revolving Credit Commitments to the ~~Revolving Credit~~ Tranche A Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a ~~Revolving Credit~~ Tranche A Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a ~~Revolving Credit~~ Tranche A Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. For avoidance of doubt, on and after any Increased Amount Date, no Lender shall be required to incur Revolving Credit Exposure in excess of such Lender’s Revolving Credit Commitment as of the day immediately preceding such Increased Amount Date unless, and then only to the extent, that such Lender has issued a New Revolving Credit Commitment effective as of such Increased Amount Date. Notwithstanding anything to the contrary contained herein, (x) to the extent the first $100,000,000 of the Maximum Incremental Facilities Amount, or any portion thereof, shall comprise New Revolving Credit Commitments to be obtained by the Parent Borrower pursuant to this Section 2.14, such New Revolving Credit Commitments (and corresponding New Revolving Loans) shall not be permitted to be obtained hereunder unless the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma basis after giving effect to the incurrence of such Indebtedness, shall be no greater than 4.25 to 1.00 on the date of such incurrence (based on the Consolidated EBITDA as of the most recent Test Period); and (y) with respect to all remaining New Revolving Credit Commitments to be obtained by the Parent Borrower pursuant to this Section 2.14, such New Revolving Credit Commitments (and corresponding New Revolving Loans) shall not be permitted to be obtained hereunder unless the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma basis after giving effect to the incurrence of such Indebtedness, shall be no greater than 4.00 to 1.00 on the date of such incurrence (based on the Consolidated EBITDA as of the most recent Test Period). (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto[Reserved]. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be be, except as otherwise set forth herein or in the applicable Joinder Agreement identical to the ~~2020 Revolving Credit~~ existing Tranche A Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit CommitmentsTranche A Commitment. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Abl Credit Agreement (Dollar General Corp), Abl Credit Agreement (Dollar General Corp)

Incremental Facilities. (a) The Borrower ~~may by~~ may, at its option, from time to time on or after the Effective Date, obtain one or more additional term loans up to an aggregate principal amount of €25,000,000 (each, a “New Loan”), in each case upon at least four Business Days’ prior written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative ~~Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such~~ Agent, which notice shall specify (A) the requested amount of a New Loan and (B) date ~~(each, an “Increased Amount Date”)~~ on which the Borrower proposes ~~that the~~ to borrow such New Loan ~~Commitments shall~~ (such date, a “New Loan Borrowing Date”), and in connection therewith: (i) the Borrower may offer any New Loan to be ~~effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered~~ provided to the ~~Administrative Agent. The~~ Lenders (but no Lenders will be required to provide any such New Loan or will have the right to be offered to provide any such New Loan) and/or other Persons approved by the Borrower ~~may approach any~~ and, unless such Person is a Lender or ~~any Person~~ an Affiliate or an Approved Fund of a Lender, the Administrative Agent (~~other than~~ such approval not to be unreasonably withheld or delayed) on either a ~~natural person) to provide all~~ pro-rata or ~~a portion of~~ non-pro-rata basis as determined by the ~~New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline,~~ Borrower in its sole discretion; (ii) each of the representations and warranties set forth herein or in any other Loan Document shall be true and correct in all material respects immediately prior to, ~~to provide a New Loan Commitment. In each case~~and immediately after giving effect to, the borrowing of any such New ~~Loan Commitments shall become effective as of the applicable Increased Amount Date~~Loan; provided that (i1) any such representation or warranty which expressly relates to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, and any representation and warranty that is qualified by or subject to a Material Adverse Effect or similar term or qualification shall be true and correct in all respects (after giving effect to any such qualification or materiality) and (2) with respect to any New Loan in connection with a Limited Condition Investment, such representations and warranties shall only be required to be true and correct in all material respects on and as of the date of the applicable LCT Test Date; (iii) immediately prior to, and immediately after giving effect to, the borrowing of any such New Loan, no Default or Event of Default shall have occurred and be continuing (except that, with respect to any New Loan in connection with a Limited Condition Investment, the requirement pursuant to this clause (a)(iii) shall be that no Event of Default shall exist on at the applicable LCT Test Date and no Event of Default under Section 8.01(a) or 8.01(f) (solely with respect to the Borrower) shall exist as of the effectiveness of such ~~Increased Amount Date before or~~ Incremental Agreement in each case after giving effect to such New Loan); (iv) subject to the provisions of Section 1.11 with respect to any New Loan ~~Commitments~~in connection with a Limited Condition Investment, ~~as applicable; (ii) both before~~ immediately prior to, and immediately after giving effect to to, the ~~making~~ borrowing of any ~~Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the~~ such New Loan ~~Commitments shall be effected pursuant to one or more Joinder Agreements executed~~ and ~~delivered by~~ the ~~Borrower and Administrative Agent~~use of proceeds thereof, ~~and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv)~~ on a pro forma basis, the Borrower shall ~~make any payments required pursuant to Section 2.11~~ be in ~~connection~~ compliance with the ~~New Loan Commitments,~~ covenants in Section 7.11 as ~~applicable; and~~ of the then most recently ended fiscal quarter of the Borrower; (v) ~~the Borrower~~ no consent of any Lender shall ~~deliver or cause to~~ be ~~delivered any legal opinions or other documents reasonably requested by Administrative Agent~~ required in connection with any ~~such transaction. Any~~ increase in the Commitments in respect of any New ~~Term Loans made on an Increased Amount Date shall be designated~~Loan or the funding of its share of the New Loans, ~~a separate series~~ in each case in accordance with this Section 2.12(a); (vi) each Commitment in respect of any New Loan (a “~~Series~~New Commitment”) ~~of New Term Loans for all purposes of this Agreement; provided that~~ shall become effective when the Persons (Aincluding Lenders) ~~if the use of proceeds of~~ providing such New Loan ~~Commitments is an acquisition or investment permitted under this Agreement~~(such Lenders and other Persons, ~~if agreed among~~ the “Incremental Lenders”), the Borrower and the Administrative Agent shall have entered into a written agreement (each an “Incremental Agreement”) pursuant to which (A) each such Incremental Lender agrees to provide a New ~~Revolving~~ Commitment and to extend a New Loan ~~Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to~~ in the ~~effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and~~ amount specified therein (B) if each such Incremental Lender that is not then a Lender agrees to assume and accept the obligations and rights of a Lender hereunder, (C) the Borrower accepts such New Commitment and (D) a New Loan ~~Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause~~ Borrowing Date is specified; (~~iii~~vii) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the ~~definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”~~Borrower certifying compliance with the conditions specified in Section 2.12(a)(ii), ~~the conditions set forth in clauses (i~~Section 2.12(a)(iii) and Section 2.12(a)(iv); and (iiviii) ~~above~~ the principal amount of each New Loan shall be in an amount that is an integral multiple of €1,000,000 and not ~~apply~~less than €5,000,000. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Incremental Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent~~Agent and the Borrower, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.12. (ic) Each New Loan shall be deemed, for all purposes, a Loan. The ~~Borrower may at any time~~ New Loans, together with all Initial Loans, will be construed as a single fungible tranche of Loans, and ~~from time to time request that all or a portion~~ the terms and provisions of the ~~Term~~ New Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the ~~Term Loans~~ terms and provisions of the ~~Existing Term~~ Initial Loans. The Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all New Loans, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by allocating a portion of each New Loan ~~Class from which they are~~ to each outstanding Borrowing on a pro rata basis. If any New Loan is to be ~~converted except (x)~~ allocated to an existing Interest Period for a Borrowing, then the ~~scheduled final maturity date~~ interest rate thereon for such Interest Period and the other economic consequences thereof shall be ~~extended and all or any of~~ as set forth in the Incremental Agreement. In addition, the scheduled amortization payments ~~of principal of~~ under Section 2.04(a) required to be made after the ~~Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans~~ making of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term New Loans ~~were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may~~ shall be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any ratably increased ~~margins contemplated~~ by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any aggregate principal amount of such New Loans ~~related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments”~~ and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be ~~identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x)~~ further increased for all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the ~~date on~~ extent necessary to avoid any reduction in the amortization payments to which the Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to were entitled before such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be corecalculation.

Appears in 2 contracts

Sources: Credit Agreement (Accelerant Holdings), Credit Agreement (Accelerant Holdings)

Incremental Facilities. (a) ~~The Borrower may by written notice to Administrative Agent elect to~~ At any time the Borrower, may, if it so elects, (i) increase the aggregate amount of the revolving Commitments (each, an “Incremental Revolving Increase”) or (ii) request the ~~establishment~~ addition of one or more ~~(x) additional~~ new tranches of term loans (~~the commitments thereto~~each, ~~the~~ an “~~New~~ Incremental Term ~~Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments~~Facility” and, together with the ~~New Term Loan Commitments~~Incremental Revolving Increases, the “~~New Loan Commitments~~Incremental Facilities”), either by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to designating one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, financial institutions not theretofore a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender ~~with a New Revolving Credit Commitment~~ (each, a “New ~~Revolving Loan~~ Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender (such designation to be effective only with ~~respect to~~ the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the prior written consent ~~of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion~~ of the Administrative Agent, ~~to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all~~ which consent will not be unreasonably withheld or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (Adelayed), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all and/or by agreeing with one or ~~a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each~~ more existing ~~at the time of such request~~ Lenders (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit ClassIncreasing Lender”) that each such Lender’s Commitment shall be ~~converted to extend the termination date thereof~~ increased. Upon execution and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, delivery by the Borrower ~~shall provide a notice~~ and such Lender or other financial institution of an instrument in form reasonably satisfactory to the Administrative Agent ~~(who shall provide a copy of~~ providing for such ~~notice to each of~~ new or increased Commitment, addressing the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be establishedother matters related thereto contemplated in this Section, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitmentsand, ~~(y) (A) the interest margins~~ with respect to an Incremental Term Facility, providing for appropriate modifications for obligations of Lenders, commitments and loans (each, an “Incremental Amendment”), each such New Lender and Increasing Lender shall have a Commitment as set forth in such instrument with all the ~~Extended Revolving Credit Commitments may be higher or lower than~~ rights and obligations of a Lender with such a Commitment hereunder, the ~~interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable~~ commitments of Lenders agreeing to ~~the Lenders providing~~ provide such ~~Extended Revolving Credit Commitments in addition to or in lieu of~~ Incremental Facilities shall become “Commitments” hereunder and any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit CommitmentIncremental Facilities shall, ~~in each case~~when made, ~~to the extent provided in the applicable Extension Amendment~~constitute “Loans” under this Agreement; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co:

Appears in 2 contracts

Sources: Credit Agreement (Cloud Peak Energy Resources LLC), Credit Agreement (Cloud Peak Energy Resources LLC)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coa

Appears in 2 contracts

Sources: Joinder Agreement (First Data Corp), Joinder Agreement (First Data Corp)

Incremental Facilities. (a) ~~The Borrower~~ Company may by written notice to Administrative Agent elect to request (i) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (ii) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $400,000,000 in the aggregate for all such New Revolving Loan Commitments and New Term Loan Commitments and not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $400,000,000 and all such New Revolving Loan Commitments and New Term Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the Borrower~~ Company proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to Administrative Agent and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to ~~provide all or a~~ whom Company proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.2 shall be satisfied; (~~iii~~3) Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.10 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (4) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrowers, the ~~Borrower~~ New Revolving Loan Lender or New Term Loan Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender and New Term Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(c); (iv5) ~~the Borrower~~ Borrowers shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; and (v6) ~~the Borrower~~ Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Loan Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Loan Commitments, (bii) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Loan Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the Borrower~~ Company (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. (e) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes~~ the Tranche C Term Loans. The terms and provisions of the ~~existing Initial Term~~ New Revolving Loans shall be identical to the Revolving Loans~~; provided that~~ . In any event (i) the applicable New Term Loan Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ final maturity of the Tranche C Term ~~Loans being refinanced)~~ Loans, and ~~mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical,~~ (ii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New Term Loans of each Series shall be determined by ~~the Borrower~~ Company and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative ~~Agent,~~ Agent to effect the provision of this Section ~~2.14~~2.24. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (Education Management LLC), Credit and Guaranty Agreement (Education Management LLC)

Incremental Facilities. (a) ~~The~~ Any Borrower (including any Additional Borrower) or any other Guarantor may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Sterling. ~~Each such notice~~ In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrowers shall ~~specify~~ provide to the ~~date (each, an “Increased Amount Date”) on which the Borrower proposes~~ Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be ~~effective~~in reasonable detail and shall provide the calculations and basis therefor and, ~~which shall be a date not less than ten Business Days after~~ subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) of the ~~date on which such notice is delivered to the Administrative Agent~~definition of “Maximum Incremental Facilities Amount”. The ~~Borrower~~ Borrowers may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In Subject to Section 1.12 in each case, such New Loan Commitments shall ~~become effective as of the applicable Increased Amount Date; provided that~~ be subject to (i) no ~~Default or~~ Event of Default under Section 11.1 or Section 11.5 (with respect to the Borrowers) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrowers and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the ~~Borrower~~ Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans ~~made on an Increased Amount Date shall~~ shall, at the election of the Borrowers and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement~~; provided that (A) if~~ . On and after the ~~use~~ Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of ~~proceeds~~ Revolving Credit Loans for all purposes of ~~such New Loan Commitments is an acquisition~~ this Agreement. Notwithstanding anything else to the contrary in this Section 2.14 or ~~investment permitted under~~ otherwise in this Agreement, ~~if agreed among~~ any Incremental Loans may be incurred by any Borrower(s) and/or any other Credit Party at the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu option of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applyBorrowers. (b) ~~On any Increased Amount Date on which New~~ Incremental Revolving Credit Commitments ~~are effected,~~ shall be subject to the satisfaction of the ~~foregoing~~ following terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) ~~On any Increased Amount Date on which any~~ New Term Loan Commitments of any Series ~~are effective,~~ shall be subject to the satisfaction of the ~~foregoing~~ following terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the ~~Borrower~~ Borrowers (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrowers; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Tranche B-5 Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the ~~2018B Second~~ then existing Tranche B-5 Term Loans (provided that the foregoing clauses (i) and (ii) shall not apply to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in Incremental Term Facilities as selected by the Borrowers, (B) customary bridge loans (including 364-day bridge loans); provided, that either (x) the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than the Tranche B-5 Term Loan Maturity Date or (y) any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of clauses (i) and (ii), (C) customary term A loans and (D) Indebtedness issued subject to customary escrow arrangements that have redemption requirements related to such escrow release (so long as subject to such escrow)), (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrowers and the Lenders thereunder; provided, that except with respect to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) of New Term Loans (as selected by the Borrowers), (B) customary term A loans, (C) customary bridge loans (including 364-day bridge loans) (provided that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (iii)) and (D) New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, with respect to any such non-excepted New Term Loans in the form of a broadly syndicated U.S. dollar denominated term “B” loan that is secured on a pari passu basis with the Tranche B-5 Term Loans incurred pursuant to clause (i)(a) of the definition of “Maximum Incremental Facilities Amount” that matures earlier than one year after the Tranche B-5 Term Loan Maturity Date, only during the period commencing on the Amendment No. 6 Effective Date and ending on the date that is 12 months after the Amendment No. 6 Effective Date, if the Applicable Margin for SOFR Loans in respect of such New Term Loans exceeds the Applicable Margin for SOFR Loans in respect of the then existing Tranche B-5 Term Loans by more than 0.75%, the Applicable Margin for SOFR Loans in respect of the then existing Tranche B-5 Term Loans shall be adjusted so that the Applicable Margin in respect of the then existing Tranche B-5 Term Loans that are SOFR Loans is equal to the Applicable Margin for SOFR Loans in respect of such New Term Loans minus 0.75% (the “Tranche B-5 MFN Protection”), (iv) to the extent such terms and documentation are not consistent with the then existing Tranche B-5 Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall either (x) reflect market terms and conditions (as determined by the Borrowers in good faith) at the time of incurrence or issuance of New Term Loans (or in the ~~case~~ obtaining of ~~New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced~~a commitment with respect thereto) ~~and~~ or (~~iii~~y) ~~all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall~~ be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the then-Latest Term Loan Maturity Date), (v) any New ~~Revolving~~ Term Loans 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 5.1 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 New Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 5.2, (vi) New Term Loans may not be guaranteed by any Person which is not a Credit Party and (vii) if secured, any New Term Loans may not be secured by assets that do not constitute Collateral. For the avoidance of doubt, all parties to this Agreement hereby agree that the proviso to clause (iii) of this paragraph (d) does not apply with respect to any Tranche B-2 Term Loans and/or Tranche B-4 Term Loans (all of which such “MFN” protections have expired prior to the Amendment No. 6 Effective Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the ~~2020~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and of security with the Revolving Credit Loans and the ~~2020~~ Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments; , (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Section 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that ~~New~~ the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may ~~provide for (a)~~ constitute a ~~commitment termination date that is later than~~ separate Class or Classes, as the ~~commitment termination date~~ case may be, of Commitments from the ~~2020~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrowers and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or in shorter than, as the case may be, the maturity date or the remaining weighted average life, as applicable, of ~~New~~ the Initial Revolving Credit Commitments ~~that are Refinancing Commitments, later than the commitment termination date of the~~ and related Revolving Credit ~~Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments~~Loans. (eix) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness. (f) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Credit Agreement (GoDaddy Inc.), Eighth Amendment Agreement (GoDaddy Inc.)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) of the definition of Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount ~~Date~~Date (subject to Section 1.12); provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , and subject to Section 1.12, (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by the Lenders providing such new Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) if part of a Series of existing Term Loans. On and after the ~~use~~ Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of ~~proceeds~~ Additional Revolving Credit Loans for all purposes of ~~such New Loan Commitments is an acquisition or investment permitted under~~ this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with the Initial Term Loans; provided that clauses (i) and (ii) shall not apply to up to the greater of (x) $151,500,000 and (y) 50% of Consolidated EBITDA for the most recently ended Test Period of New Term Loans as elected by the Borrower (or the “Maturity Carveout Amount”); (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that solely in the case of New Term Loans incurred prior to the 24 month anniversary of the Sixth Amendment Effective Date, if the Effective Yield for Term Benchmark Loans or ABR Loans in respect of such New Term Loans consisting of Term Loans that are ~~Refinancing Commitments, no shorter than that~~ secured by the Collateral on a pari passu basis with the Initial Term Loans exceeds the Effective Yield for Term Benchmark Loans or ABR Loans in respect of the then existing Initial Term Loans ~~being refinanced) and (iii) all other terms applicable~~ by more than 0.50%, the Applicable Margin for Term Benchmark Loans or ABR Loans in respect of the then existing Initial Term Loans is equal to the Effective Yield for Term Benchmark Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the terms of ~~each Series~~ this proviso to this clause (iii), the “MFN Protection”); provided further that ~~differ from~~ the ~~existing~~ MFN Protection shall not apply to (i) up to the greater of (x) $151,500,000 million and (y) 50% of Consolidated EBITDA for the most recently ended Test Period of New Term Loans as elected by the Borrower of New Term Loans or Permitted Other Indebtedness (as selected by the Borrower), (ii) any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, (iii) any New Term Loans incurred pursuant to clause (i) of the definition of Maximum Incremental Facilities Amount and (iv) any New Term Loan which mature later than the date that is one year after the Initial Term Loan Maturity Date; and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and New~~ Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the ~~2020~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the ~~2020~~ Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments; , (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that ~~New~~ the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may ~~provide for (a)~~ constitute a ~~commitment termination date that is later than~~ separate Class or Classes, as the ~~commitment termination date~~ case may be, of Commitments from the ~~2020~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, (~~or in~~ viii) the ~~case~~ pricing, fees, maturity and other immaterial terms of ~~New~~ the Additional Revolving Credit ~~Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced)~~ Loans may be different and ~~(b) fees and pricing as agreed between~~ shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans, and (ix) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

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

Incremental Facilities. (a) ~~The~~ Any Borrower may by written notice to ~~Administrative~~ the Agent elect to request the establishment of one or more (x) additional tranches of term loans of any class in Dollars, Euros, Sterling, Yen, Canadian Dollars or any other currency reasonably acceptable to the Agent or new Commitments to increase any existing Class of Term Loans (the commitments ~~thereto~~described in this clause (x), the “New Term ~~Loan~~ Commitments”~~) and/or~~ ), (y) increases in Revolving ~~Credit~~ Commitments under one or more of the then existing Revolving Facilities or new revolving commitments under a new revolving facility (a “New Revolving Facility”) (any such commitments described in this clause (y), the “New Revolving ~~Credit~~ Commitments” and, together with the New Term ~~Loan~~ Commitments, the “New ~~Loan~~ Commitments”~~), by an aggregate~~ ) in a Dollar Equivalent amount at any time not to exceed (other than in ~~excess~~ the case of any New Commitments with respect to Refinancing Term Loans and/or Replacement Revolving Commitments) the Maximum Incremental ~~Facilities~~ Amount ~~in the aggregate~~ at such time and not less than the Dollar Equivalent of $~~100,000,000~~ 25.0 million individually (or such lesser amount ~~as (x) may~~ which shall be approved by the ~~Administrative~~ Agent or ~~(y)~~ such lesser amount that shall constitute the ~~difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date~~entire remaining availability hereunder). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New ~~Loan~~ Commitments shall be effective, which shall be a date not less than ~~ten~~ five Business Days after the date on which such notice is delivered to Agent (or such shorter period as may be agreed by the ~~Administrative~~ Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments~~); provided that any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Commitment. ~~In each case, such~~ Such New ~~Loan~~ Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i) subject to Section 1.10, no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments, as applicable; (ii) subject to Section 1.10, both before and after giving effect to the making of any ~~Series of~~ New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 4.02 shall be satisfied; (iii) subject to Section 1.10, the U.S. Borrower and the Restricted Subsidiaries shall be in pro forma compliance with Section 6.10 as of the last day of the most recently ended fiscal quarter prior to such Increased Amount Date and as in effect on such Increased Amount Date after giving effect to such New Commitments and any Investment to be consummated in connection therewith; (iv) the New ~~Loan~~ Commitments shall be effected pursuant to one or more ~~Joinder Agreements~~ supplements to this Agreement executed and delivered by the ~~Borrower and Administrative Agent~~Loan Parties, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New ~~Loan Commitments, as applicable~~Lenders and the Agent; and (v) ~~the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with~~ any such ~~transaction~~supplement shall provide that each New Lender shall automatically become party to the Loss Sharing Agreement pursuant to such supplement. ~~Any~~ The Euro Term A Loans, the Canadian Term A-1 Loans and any other New Term Loans (other than the Canadian Term A Loans funded pursuant to the Additional Canadian Term A Commitments and any other New Term Loans which are designated as an increase in the amount of any previously established Class of Term Loans) made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement~~; provided that (A) if~~ . In connection with the ~~use~~ obtaining of ~~proceeds of such~~ any New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to ~~clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”~~this Section 2.19(a), the ~~conditions set forth~~ U.S. Borrower shall, or shall cause the other applicable Loan Parties to, make such amendments to the Collateral Documents and take such other customary actions, if any, as the Agent may reasonably request in ~~clauses~~ order to preserve and protect the Liens on the Collateral securing the Obligations (ieither prior to or within 30 days (or such longer period as to which the Agent may consent) ~~and (ii) above shall not apply~~following the Increased Amount Date for such New Commitments). (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Commitments are ~~effected~~effected under any existing Revolving Facility (but not any New Revolving Facility being established on such date), subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving ~~Credit~~ Commitments under the applicable Revolving Facility shall assign to each Lender with a New Revolving ~~Credit~~ Commitment (each, a “New Revolving ~~Loan~~ Lender”) and each of the New Revolving ~~Loan~~ Lenders shall purchase from each of the Lenders with Revolving ~~Credit Commitments~~Commitments under the applicable Revolving Facility, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving ~~Credit~~ Loans outstanding under the applicable Revolving Facility on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Lenders with Revolving ~~Credit Lenders~~ Loans under the applicable Revolving Facility and New Revolving ~~Loan~~ Lenders ratably in accordance with their ~~Revolving Credit Commitments~~ Ratable Portions after giving effect to the addition of such New Revolving ~~Credit~~ Commitments to ~~the~~ such Revolving ~~Credit Commitments~~Facility, (b) each such New Revolving ~~Credit~~ Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment under the applicable Revolving Facility and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan under the applicable Revolving Facility and (c) each New Revolving ~~Loan~~ Lender with a New Revolving Commitment under an existing Revolving Facility shall become a Lender under the applicable Revolving Facility with respect to the New Revolving ~~Credit~~ Commitment and all matters relating thereto. On any Increased Amount Date on which New Revolving Commitments are effected under any New Revolving Facility, subject to the satisfaction of the foregoing terms and conditions, the Agent and the Borrowers shall enter into an amendment to this Agreement to incorporate the terms of such New Revolving Facility hereunder on substantially the same terms as were applicable to the existing Revolving Facilities (except with respect to the rate of interest and the Scheduled Termination Date applicable to such New Revolving Facility and except as otherwise reasonably acceptable to the Agent). (c) On any Increased Amount Date on which any New Term ~~Loan~~ Commitments of any ~~Series~~ Class are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term ~~Loan~~ Commitment (each, a “New Term Loan Lender”) of any ~~Series~~ Class shall make a Loan to the applicable Borrower (a “New Term Loan”) in the requested currency in an amount equal to its New Term ~~Loan~~ Commitment of such ~~Series~~Class, and (ii) each New Term Loan Lender of any ~~Series~~ Class shall become a Lender hereunder with respect to the New Term ~~Loan~~ Commitment of such ~~Series~~ Class and the New Term Loans of such ~~Series~~ Class made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term ~~Loan~~ Commitments ~~of any Series~~ shall be, except as otherwise set forth herein or in the applicable ~~Joinder Agreement~~supplement relating thereto, identical to ~~one or more Classes of~~ the existing ~~Initial~~ Term Loans; provided that (i) the ~~applicable~~ final maturity date of the New Term ~~Loan Maturity Date of each Series~~ Loans shall be no earlier than (x) in the ~~2018B Second New~~ case of Refinancing Term ~~Loan Maturity Date~~ Loans, the Term Loans or Revolving Commitments refinanced therewith, (or y) in the case of New Term ~~Loans that are Refinancing Commitments~~A Loans, ~~no earlier than that~~ the U.S. Term A Loan Maturity Date and (z) in the case of any other New Term Loans, the U.S. Term ~~Loans being refinanced) and~~ B-1 Loan Maturity Date, and, in the case of all New Term Loans, the mandatory prepayment ~~rights (other than scheduled amortization) of~~ provisions applicable to the New Term Loans ~~and the existing~~ shall not require that any mandatory prepayment pursuant to Section 2.09 apply to such New Term Loans ~~shall be identical~~on a greater basis than ratable basis then outstanding Term Loans, (ii) the ~~fees~~currency, ~~pricing~~ optional prepayment provisions, rate of interest and the amortization schedule applicable to ~~the~~ any New Term Loans of each Series shall be determined by the applicable Borrower and the applicable new Lenders and shall be set forth in ~~each~~ the applicable ~~Joinder Agreement~~supplement relating thereto; provided that (A) the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~all~~ any New Term Loans ~~shall~~ will be no shorter than (x) in the ~~weighted average life~~ case of Refinancing Term Loans, the Weighted Average Life to ~~maturity~~ Maturity of the ~~2018B Second New~~ Term Loans refinanced or Revolving Commitments replaced thereby, (or y) in the case of New Term ~~Loans that are Refinancing Commitments~~A Loans, ~~no shorter than that~~ the then remaining Weighted Average Life to Maturity of the U.S. Term A Loans or Canadian Term A Loans and (z) in the case of any other New Term Loans, the then remaining Weighted Average Life to Maturity of the U.S. Term B-1 Loans, (B) if the Effective Yield of any New Term Loans ~~being refinanced~~(other than Refinancing Term Loans) denominated in Dollars established on any Increased Amount Date occurring on or prior to the twelve (12) month anniversary of the Closing Date exceeds the Effective Yield of the U.S. Term B Loans by more than 50 basis points, the Applicable Rates for the U.S. Term B Loans shall be increased to the extent necessary so that, after giving effect to such increase, the Effective Yield of the U.S. Term B Loans is equal to the Effective Yield of such New Term Loans minus 50 basis points and (~~iii~~C) if the Effective Yield of any New Term Loans (other than Refinancing Term Loans) denominated in Dollars established on any Increased Amount Date occurring on or prior to the twelve (12) month anniversary of the Incremental Amendment No. 2 Effective Date exceeds the Effective Yield of the U.S. Term B-1 Loans by more than 50 basis points, the Applicable Rates for the U.S. Term B-1 Loans shall be increased to the extent necessary so that, after giving effect to such increase, the Effective Yield of the U.S. Term B-1 Loans is equal to the Effective Yield of such New Term Loans minus ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇) New Term Loans shall not be guaranteed by any Subsidiary of the U.S. Borrower that is not a Loan Party and shall be secured on a pari passu basis with the other Obligations pursuant to the Collateral Documents and (iv) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the ~~Administrative~~ Agent (as evidenced by its execution of the applicable ~~Joinder Agreement~~supplement relating thereto). The terms and provisions of the New Revolving Loans and New Revolving ~~Credit~~ Commitments forming an increase in any then existing Revolving Facility shall be identical to the ~~2020~~ Revolving ~~Credit~~ Loans and the ~~2020~~ Revolving ~~Credit Commitments~~Commitments under such Revolving Facility; provided ~~that~~ that, with respect to any New Revolving ~~Credit Commitments may provide for~~ Facility, (ai) ~~a commitment termination date that is later~~ the Scheduled Termination Date with respect thereto shall be set forth in the applicable supplement and shall be no earlier than the ~~commitment termination date~~ Scheduled Termination Date of any then outstanding Revolving Facility in effect at such time, (ii) the ~~2020 Revolving Credit Commitments (or in~~ rate of interest and fees applicable thereto shall be determined by the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the applicable Borrower and the applicable new Lenders ~~providing~~ and shall be set forth in the applicable supplement relating thereto, (iii) such New Revolving ~~Credit Commitments. (e) Each Joinder Agreement may, without~~ Facility shall not be guaranteed by any Subsidiary of the ~~consent of any other Lenders, effect such amendments to this Agreement~~ U.S. Borrower that is not a Loan Party and shall be secured on a pari passu basis with the other ~~Credit~~ Obligations pursuant to the Collateral Documents and (iv) all other terms applicable thereto that differ from the existing Revolving Loans and Revolving Commitments under the existing Revolving Facilities (including but not limited to any currency available under or any Borrower of such New Revolving Facility) shall be reasonably acceptable to the Agent (as ~~may be necessary or appropriate, in~~ evidenced by the ~~opinion~~ execution of the ~~Administrative Agent, to effect the provision of this Section 2.14~~applicable supplement relating thereto). (i) ~~The~~ Any Borrower may at any time and from time to time request that all or a portion of the Term Loans under any Term Loan Facility of ~~any Class~~ such Borrower (an “Existing ~~Term Loan~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans and/or amended to lower the Effective Yield thereof (any such Term Loans which have been so ~~converted~~converted and/or extended, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.19(e). In order to establish any Extended Term Loans, the applicable Borrower shall provide a notice to the ~~Administrative~~ Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing ~~Term Loan~~ Class) (a an “~~Term Loan~~ Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing ~~Term Loan~~ Class from which they are to be converted except (xw) ~~the scheduled final maturity date shall be extended and~~ all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing ~~Term Loan Class~~ Class, (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (yx) (A) the interest ~~margins~~ rate and fee provisions with respect to the Extended Term Loans may be ~~higher or lower than the interest margins for~~ different from those applicable to the Term Loans of such Existing Class (and Extended Term ~~Loan Class~~ Loans may provide for prepayment protection that is different from those applicable to such Existing Class) and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), ~~in each case, to~~ (y) the ~~extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into~~ supplement providing for such Extended Term Loans ~~pursuant~~ may provide for other terms applicable to ~~any Extension Request. Any~~ such Extended Term Loans ~~of any Extension Series shall constitute a separate Class of~~ so long as either (A) such additional terms do not apply until all Term Loans ~~from~~ and Commitments outstanding immediately prior to the establishment of such Extended Term Loans have been repaid, terminated or returned as applicable, (B) such additional terms are less favorable to the holders of the Extended Term Loans than the corresponding Existing Class or (C) such additional terms have been approved by the Required Lenders and (z) the mandatory prepayment rights of the Extended Term Loans and such Existing Class may be different so long as the proportion (if any) of the proceeds thereof to which such Extended Term Loans are entitled is no greater on a proportionate basis than the portion of such proceeds to which the Existing ~~Term Loan~~ Class ~~from which they were converted~~is entitled to receive. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower Borrowers shall provide the applicable Extension Request at least ~~ten~~ five (105) Business Days prior to the date on which Lenders under the Existing Class are requested to respond (or such shorter period as may be agreed by the ~~Administrative~~ Agent~~) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond~~). Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class ~~or Existing Classes~~ subject to such Extension Request converted into Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ shall notify the ~~Administrative~~ Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class ~~or Existing Classes subject to such Extension Request that~~ which it has elected to convert into Extended Term ~~Loans or Extended Revolving Credit Commitments, as applicable~~Loans. In the event that the aggregate amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class ~~or Existing Classes~~ subject to Extension Elections exceeds the amount of Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ requested pursuant to the Extension Request, Term Loans ~~or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes~~ subject to Extension Elections shall be converted to Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ on a pro rata basis based on the amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans included in each such Extension Election (subject to such rounding as the Agent deems expedient). For the avoidance of doubt, each Lender agrees that any Term Loan that is converted to an Extended Term Loan (and the Extending Lender providing such Extended Term Loan) shall continue to be subject to the Loss Sharing Agreement to the same extent as the Term Loan from which such Extended Term Loan was converted. Any Extended Term Loans shall be established on the date set forth in the applicable supplement entered into by the applicable Borrower and the Agent pursuant to this Section 2.19(e) (it being understood that by providing an Extension Election~~. Notwithstanding~~ , an Extending Lender will agree to be bound thereby). (f) Each supplement pursuant to this Section 2.19 may, without the ~~conversion~~ consent of any ~~Existing Revolving Credit Commitment (~~other ~~than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment~~Lenders, effect such ~~Extended Revolving Credit Commitment shall~~ amendments to this Agreement and the other Loan Documents as may be ~~treated identically to all other Old Revolving Credit Commitments for purposes~~ necessary or appropriate, in the opinion of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended Agent and the ~~related obligations~~ Joint Lead Arrangers, to ~~make Swingline Loans and issue Revolving Letters~~ effect the provision of ~~Credit may be co~~this Section 2.19. (g) The provisions of this Section 2.19 shall override any provisions of Section 9.02 to the contrary and, for the avoidance of doubt Section 2.09(b).

Appears in 2 contracts

Sources: Credit Agreement (Aramark), Credit Agreement (Aramark)

Incremental Facilities. ~~(a) The Borrower~~ Borrowers may by written notice to Administrative Agent elect to request the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $75,000,000 in the aggregate and not less than $~~100,000,000~~ 15,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $75,000,000 and all such New Term Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $1,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the Borrower~~ one or both Borrowers proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to GSCP and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Term Loan Lender”) to ~~provide all~~ whom such Borrower or a Borrowers proposes any portion of such New Term Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that GSCP may elect or decline to arrange such New Term Loan Commitments in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan ~~Commitment~~Commitments. ~~In each case, such~~ Such New Term Loan Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of any Series of the New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.2 shall be satisfied; (~~iii~~3) Holdings and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Term Loan Commitments; (4) the New Term Loan Commitments shall be effected pursuant to one or more Joinder ~~Agreements~~ Agreement executed and delivered by such Borrower or Borrowers, the ~~Borrower~~ New Term Loan Lenders and Administrative Agent, and each of which shall be recorded in the Register and each New Term Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(d); (iv5) ~~the~~ such Borrower or Borrowers shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Term Loan Commitments~~, as applicable~~; and (v6) ~~the~~ such Borrower or Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) . On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the~~ such Borrower or Borrowers (a “New Term Loan”) in an amount equal to its New Term Loan ~~Commitment~~ Commitments of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan ~~Commitment~~ Commitments of such Series and the New Term Loans of such Series made pursuant thereto~~. (d)~~ . Administrative Agent shall notify Lenders promptly upon receipt of Borrowers’ notice of such Increased Amount Date and in respect thereof the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable. The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes~~ the U.S. Term Loans and European Term Loans. In any event (i) the weighted average life to maturity of the ~~existing Initial~~ New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the U.S. Term Loans and the European Term Loans~~; provided that~~ , (iii) the applicable New Term Loan Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ latest of the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization)~~ final maturity of the ~~New~~ Revolving Loans, the U.S. Term Loans and the ~~existing~~ European Term ~~Loans shall be identical~~Loans, and (iiiii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New Term Loans of each Series shall be determined by ~~the~~ such Borrower or Borrowers and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; ~~provided~~ provided, however, that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms interest rate applicable to the New Term Loans ~~of each Series~~ (after giving effect to all upfront or similar fees or original issue discount payable with respect to such New Term Loans) shall not be greater than the highest interest rate that ~~differ from the existing~~ may, under any circumstances, be payable with respect to U.S. Term Loans ~~shall be reasonably acceptable~~ and European Term Loans plus 0.50% per annum unless the interest rate with respect to the ~~Administrative Agent (~~U.S. Term Loans and European Term Loans is increased so as ~~evidenced by its execution of~~ to equal the interest rate applicable ~~Joinder Agreement). The terms and provisions of~~ to the New ~~Revolving~~ Term Loans ~~and New Revolving Credit Commitments shall be identical~~ (after giving effect to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (all upfront or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b)~~ similar fees ~~and pricing as agreed between the Borrower and the Lenders providing~~ or original issue discount payable with respect to such New ~~Revolving Credit Commitments. (e~~Term Loans) minus 0.50% per annum. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of ~~the~~ Administrative ~~Agent,~~ Agent to effect the provision of this Section ~~2.14~~2.24. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.), First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to Administrative ~~Agent~~ Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Pounds Sterling. ~~Each such notice shall specify~~ In connection with the ~~date (each~~incurrence of any Indebtedness under this Section 2.14, ~~an “Increased Amount Date”) on which~~ at the request of the Administrative Agent, the Borrower ~~proposes~~ shall provide to the Administrative Agent a certificate certifying that the New Term Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be ~~effective~~in reasonable detail and shall provide the calculations and basis therefor and, ~~which shall be a date not less than ten Business Days after~~ subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) of the ~~date on which such notice is delivered to the Administrative Agent~~definition of Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Term Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. In each case, on each applicable Increased Amount Date (subject to Section 1.12), such New Term Loan Commitments shall ~~become effective as of the applicable Increased Amount Date; provided that~~ be subject to (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment (including any Permitted Acquisition or Investment), no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, as applicable; , and subject to Section 1.12, (ii) ~~both before and after giving effect to~~ the ~~making of any Series of~~ New Term ~~Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New~~ Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans ~~made on an Increased Amount Date shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On [Reserved]. (c) New Term Loan Commitments of any ~~Increased Amount Date on which New Revolving Credit Commitments are effected,~~ Series shall be subject to the satisfaction of the foregoing and following terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with the Initial Term Loans; (~~or in~~ iii) the ~~case of New Term Loans that are Refinancing Commitments~~pricing, ~~no shorter than that of the Term Loans being refinanced~~interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (~~iii~~ii) ~~all other terms~~ above, amortization schedule applicable to ~~the~~ any New ~~Term Loans of each Series that differ from the existing~~ Term Loans shall be ~~reasonably acceptable to the Administrative Agent (as evidenced~~ determined by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders ~~providing~~ thereunder; provided that only during the period commencing on the Closing Date and ending on the thirty month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New ~~Revolving Credit Commitments~~Term Loans consisting of Term Loans that are secured by the Collateral on a pari passu basis with the Initial Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans of like currency by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the terms of this proviso to this clause (iii), the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent and the Required Lenders (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) [Reserved]. (f) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any ~~time~~ time, and from time to ~~time~~ time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)[Reserved]. (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes~~ Loans subject to such Extension Request converted into Extended Term ~~Loans or Extended Revolving Credit Commitments, as applicable~~Loans, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes~~ Loans subject to such Extension Request that it has elected to convert into Extended Term ~~Loans or Extended Revolving Credit Commitments, as applicable~~Loans. In the event that the aggregate amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes~~ Loans subject to Extension Elections exceeds the amount of Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ requested pursuant to the Extension Request, Term Loans ~~or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes~~ subject to Extension Elections shall be converted to Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ on a pro rata basis based on the amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans included in each such Extension Election. (iv) Extended Term Loans shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(g)(iv) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender contrary in ~~respect of Swingline Loans under~~ this Section ~~2.1(c~~2.14(g) and ~~Letters~~ without limiting the generality or applicability of ~~Credit under Article 3~~Section 13.1 to any Section 2.14 Additional Amendments, ~~except that the applicable~~ any Extension Amendment may provide ~~that the Swingline Maturity Date~~ for additional terms and/or ~~the Revolving Letter of Credit Maturity Date may be extended and the related obligations~~ additional amendments other than those referred to ~~make Swingline Loans and issue Revolving Letters of Credit may be co~~or contemplated above (any such additional amendment, a “

Appears in 2 contracts

Sources: Second Lien Credit Agreement (BrightSpring Health Services, Inc.), Second Lien Credit Agreement (BrightSpring Health Services, Inc.)

Incremental Facilities. ~~(a) The~~ Borrower may by written notice to Administrative Agent and GSCP elect to request the establishment of one ~~or more~~ new term loan commitment (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $25,000,000 in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)aggregate. ~~Each such~~ Such notice shall specify (A) the date (~~each, an~~ the “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to GSCP and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Term Loan Lender”) to ~~provide all or a~~ whom Borrower proposes any portion of such New Term Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that GSCP may elect or decline to arrange such New Term Loan Commitments in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan ~~Commitment~~Commitments. ~~In each case, such~~ Such New Term Loan Commitments shall become effective as of the ~~applicable~~ Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on ~~such~~ the Increased Amount Date before or after giving effect to such New Term Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of ~~any Series of~~ the New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.2 shall be satisfied; (~~iii~~3) Holdings and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Term Loan Commitments; (4) the New Term Loan Commitments shall be effected pursuant to ~~one or more~~ a Joinder ~~Agreements~~ Agreement executed and delivered by Borrower, the ~~Borrower~~ New Term Loan Lenders and Administrative Agent, and each of which shall be recorded in the Register and each New Term Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(d); (iv5) ~~the~~ Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Term Loan Commitments~~, as applicable~~; and (v6) ~~the~~ Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. ~~Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if~~ On the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments ~~of any Series~~ are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”) of any Series~~ Lender shall make a Loan to ~~the~~ Borrower (a “New Term Loan”) in an amount equal to its New Term Loan ~~Commitment of such Series~~Commitments, and (ii) each New Term Loan Lender ~~of any Series~~ shall become a Lender hereunder with respect to the New Term Loan ~~Commitment of such Series~~ Commitments and the New Term Loans ~~of such Series~~ made pursuant thereto~~. (d)~~ . Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of the Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders. The terms and provisions of the New Term Loans and New Term Loan Commitments ~~of any Series~~ shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes of~~ the ~~existing Initial~~ Second Lien Term Loans~~; provided that~~ . In any event (i) the ~~applicable~~ weighted average life to maturity of the New Term Loans shall be no shorter than the weighted average life to maturity of the Second Lien Term Loans, (ii) the New Term Loan Maturity Date ~~of each Series~~ shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ latest of the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization)~~ final maturity of the ~~New~~ Second Lien Term ~~Loans~~ Loans, and ~~the existing Term Loans shall be identical,~~ (iiiii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New Term Loans ~~of each Series~~ shall be determined by ~~the~~ Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; ~~provided~~ provided, however, that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms interest rate applicable to the New Term Loans ~~of each Series~~ (after giving effect to all upfront or similar fees or original issue discount payable with respect to such New Term Loans) shall not be greater than the highest interest rate that ~~differ from the existing~~ may, under any circumstances, be payable with respect to Second Lien Term Loans ~~shall be reasonably acceptable~~ plus 0.50% per annum unless the interest rate with respect to the ~~Administrative Agent (~~Second Lien Term Loans is increased so as ~~evidenced by its execution of~~ to equal the interest rate applicable ~~Joinder Agreement). The terms and provisions of~~ to the New ~~Revolving~~ Term Loans ~~and New Revolving Credit Commitments shall be identical~~ (after giving effect to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (all upfront or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b)~~ similar fees ~~and pricing as agreed between the Borrower and the Lenders providing~~ or original issue discount payable with respect to such New ~~Revolving Credit Commitments. (e~~Term Loans) minus 0.50% per annum. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of ~~the~~ Administrative ~~Agent,~~ Agent to effect the provision of this Section ~~2.14~~2.24. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 2 contracts

Sources: Second Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.), Second Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.)

Incremental Facilities. (a) ~~The~~ At any time following the Third Restatement Effective Date, the Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in or replacement classes of Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount (which amount for purposes of this limitation shall be calculated exclusive of (A) the amount any New Term Loan Commitments in respect of Refinancing Term Loans and Ratio First Lien Indebtedness and (B) the amount of any Replacement Revolving Credit Commitments that were not established in reliance on subclause (I)(y) of the proviso to Section 2.14(b)(ii)) not in excess of (when taken together with the ~~Maximum Incremental Facilities Amount~~ amount (the “Excess Amount”) by which the aggregate amount, without duplication, of the ABL Facility and any Permitted Receivables Financing exceeds $3,750,000,000 on the date such New Loan Commitments become effective) $1,500,000,000 in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $1,500,000,000 and all such New Loan Commitments (when taken together with the Excess Amount on the date such New Loan Commitments become effective) obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as the Administrative Agent may reasonably agree) after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in Section 10.8 as of the last day of the most recently ended fiscal quarter after giving effect to such New Loan Commitments and any Investment to be consummated in connection therewith; (iv) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (ivv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (vvi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that (A) if~~ Agreement unless they are specified to be an increase in any previously established class of Term Loans. The Borrower shall give the ~~use~~ Administrative Agent prompt written notice of ~~proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among~~ any increase in the ~~Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments~~ aggregate amount committed in ~~lieu~~ respect of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applyABL Facility. (bi) On any Increased Amount Date on which New Revolving Credit Commitments (other than Replacement Revolving Credit Commitments) are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable ~~currency(ies)~~currencies, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (ii) At any time following the Third Restatement Effective Date, at the option of the Borrower and the New Lenders providing such New Revolving Credit Commitments, any New Revolving Credit Commitments may be in the form of one or more separate classes of revolving credit commitments (the “Replacement Revolving Credit Commitments”) which shall constitute a separate Class of Commitments from the Revolving Credit Commitments (each such separate Class of Replacement Revolving Credit Commitments, a “Replacement Revolving Credit Series” and each Loan thereunder, a “Replacement Revolving Credit Loan”) shall constitute a separate Class of Loans from the Revolving Credit Loans (it being understood that Replacement Revolving Credit Commitments of a single Replacement Revolving Credit Series may be established on more than one date); provided that: (I) the aggregate principal amount of Replacement Revolving Credit Commitments in effect at any time, when aggregated with the aggregate principal amount of Revolving Credit Commitments at such time, shall not exceed the sum of (x) (A) $2,000,000,000 plus (B) the amount of Replacement Revolving Credit Commitments previously established prior to such date pursuant to the following subclause (y) plus (y) solely to the extent the applicable Joinder Agreement provides that the Replacement Revolving Credit Commitments are being made in reliance on this subclause (y), the remainder if positive of (A) $1,500,000,000 minus (B) the Excess Amount on the date such Replacement Revolving Credit Commitments are established minus (C) the aggregate amount of New Term Loan Commitments (excluding New Term Loan Commitments for Refinancing Term Loans or Ratio First Lien Indebtedness) established on or prior to such date minus (D) the aggregate amount of Replacement Revolving Credit Commitments previously established in reliance on this subclause (y); (II) there shall be no more than three Classes, in the aggregate, of Revolving Credit Commitments and Replacement Revolving Credit Commitments outstanding at any time; (III) the terms of such Replacement Revolving Credit Commitments, except for the tenor of the Replacement Revolving Credit Commitments (which shall have a scheduled expiration date no earlier than the Revolving Credit Maturity Date), the size of any swingline loan and/or letter of credit subfacilities under such Replacement Revolving Credit Commitments and the applicable interest rates and Fees payable with respect to such Replacement Revolving Credit Commitments (which shall be as specified in the applicable Joinder Agreement), shall be substantially identical to the terms of the Revolving Credit Commitments or Replacement Revolving Credit Commitments being replaced thereby (unless otherwise consented to by the Administrative Agent); and (IV) in connection with the establishment of any Replacement Revolving Credit Commitments that will include swingline loan and/or letter of credit subfacilities, any amendment to this Agreement pursuant to Section 2.14(e) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially identical (except for the overall size of such subfacilities, which shall be specified in the applicable Joinder Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and any applicable swingline lender or letter of credit issuer thereunder. (iii) On any Increased Amount Date on which Replacement Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) the Revolving Credit Loans or Replacement Revolving Credit Loans, as applicable, of any existing Revolving Credit Lender who is providing a new Replacement Revolving Credit Commitment on such date and whose existing Revolving Credit Commitment or Replacement Revolving Credit Commitment, as applicable, is being reduced on such date pursuant to clause (a) of the first proviso to Section 4.2 (or the corresponding provision in any Joinder Agreement with respect to Replacement Revolving Credit Commitments) in connection therewith shall be converted into Replacement Revolving Credit Loans under such Lender’s new Replacement Revolving Credit Commitment being provided on such date in the same ratio as (x) the amount of such Lender’s new Replacement Revolving Credit Commitment bears to (y) the aggregate amount of such Lenders existing Revolving Credit Commitment or Replacement Revolving Credit Commitment of such Class prior to any reduction of such Lender’s Revolving Credit Commitment or Replacement Revolving Credit Commitment pursuant to clause (a) of the first proviso to Section 4.2 (or the corresponding provision in any Joinder Agreement with respect to Replacement Revolving Credit Commitments) in connection therewith and (b) each of the New Revolving Loan Lenders with Replacement Revolving Credit Commitments of the applicable Class shall purchase from each of the other Lenders with Replacement Revolving Credit Commitments of such Class, at the principal amount thereof and in the applicable currencies, such interests in the Replacement Revolving Credit Loans under such Class of Replacement Revolving Credit Commitments so converted or outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Replacement Revolving Credit Loans of such Class will be held by New Revolving Loan Lenders with such Class of Replacement Revolving Credit Commitments ratably in accordance with their respective Replacement Revolving Credit Commitments of such Class. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to ~~one or more Classes of~~ the existing ~~Initial~~ Tranche B-8 Term ~~Loans~~Loans of any Class specified by the Borrower (if any); provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Tranche B-8 Term ~~Loan~~ LoanFinal Maturity Date (~~or in~~ as of the ~~case~~ date of incurrence of such New Term ~~Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced~~Loans) and the mandatory prepayment and other payment rights ~~(other than scheduled amortization)~~ of the New Term Loans and the existing Tranche B-8 Term Loans (other than with respect to any Debt Incurrence Prepayment Event and any scheduled amortization) shall be identical (as of the date of incurrence of such New Term Loans), except (A) to the extent that after giving effect to the incurrence or assumption of such New Term Loans, the aggregate amount of Scheduled Inside Payments does not exceed the greater of (I) $3,000,000,000 and (II) 50% of Consolidated EBITDA for the most recent Test Period for which Section 9.1 Financials have been delivered and (B) in lieu of the foregoing requirement, Refinancing Term Loans shall be ~~identical~~subject to the requirement that the New Term Loan Maturity Date therefor shall not be earlier than the final maturity date of the Class of Term Loans refinanced thereby, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each ~~Series~~ Series, and the rights thereof (if any) to participate in any Debt Incurrence Prepayment Event, shall be determined by the Borrower and the applicable new Lenders and ~~shall be~~ set forth in ~~each~~ the applicable Joinder Agreement; ~~provided~~ provided, that (x) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ Tranche B-8 Term Loansany then existing Class of Term Loans except (A) to the extent that, after giving effect to the incurrence or assumption of such New Term Loans, the aggregate amount of Scheduled Inside Payments does not exceed the greater of (I) $3,000,000,000 and (II) 50% of Consolidated EBITDA for the most recent Test Period for which Section 9.1 Financials have been delivered and (B) in lieu of the foregoing requirement, Refinancing Term Loans shall be subject to the requirement that the weighted average life to maturity thereof shall not be shorter than the weighted average life to maturity of the Term Loans refinanced thereby and (or y) in ~~the case~~ no event shall any Series of New Term Loans be entitled to participate in any Debt Incurrence Prepayment Event on a basis that ~~are Refinancing Commitments~~would require a greater proportionate repayment thereof from any such Debt Incurrence Prepayment Event that would result in the proportionate repayment thereof from any such Debt Incurrence Prepayment Event, ~~no shorter than that~~ when added to the proportionate repayments required with respect to all other Classes of ~~the~~ Term Loans ~~being refinanced) and~~ then outstanding, exceeding the amount of Net Cash Proceeds from such Debt Incurrence Prepayment Event, (iii) all other terms applicable to the New Term Loans of each Series that differ from the then existing Tranche B-8Class of Term Loans specified by the Borrower (if any) shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement) and (iv) the Joinder Agreement for any New Term Loans may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of the applicable Joinder Agreement; provided that clauses (i) and (ii) shall not apply to any customary bridge facility so long as the long-term debt into which any such customary bridge facility is to be converted satisfies clauses (i) and (ii)(x). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In ~~order~~ addition to ~~establish~~ any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and ~~all or~~ provisions in any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, ~~as the case may be, with respect~~ and any changes or amendments to ~~the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of~~ this ~~Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher~~ Agreement or ~~lower than the interest margins~~ any other Credit Document provided for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A)therein, in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that ~~all~~ are required or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided thatforegoing provisions of this Section 2.14, notwithstanding anything to the contrary in this Section ~~2.14(f)~~ 2.14 and without limiting the generality or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coapplicab

Appears in 2 contracts

Sources: Joinder Agreement (HCA Healthcare, Inc.), Joinder Agreement (HCA Healthcare, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to Administrative ~~Agent~~ Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “ Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount, when taken together with the principal amount of Permitted Other Indebtedness outstanding at such time pursuant to Section 10.1(x)(i), not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). ~~Each such notice shall specify~~ In connection with the ~~date (each~~incurrence of any Indebtedness under this Section 2.14, ~~an “Increased Amount Date”) on which~~ at the request of the Administrative Agent, the Borrower ~~proposes~~ shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be ~~effective, which~~ in reasonable detail and shall ~~be a date not less than ten Business Days after~~ provide the ~~date on which such notice is delivered to the Administrative Agent~~calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as ~~applicable;~~ applicable (or, in connection with a Limited Condition Transaction, at the time of such Increased Amount Date or, if earlier, at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 11.1 or Section 11.5) and (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Additional Revolving Credit ~~Commitments pursuant to clause (iii)~~ Loans shall be designated a separate Series of ~~the definition~~ Additional Revolving Credit Loans for all purposes of ~~Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~this Agreement. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Credit Loans or Revolving Credit Commitments, as applicable, to such Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (without giving effect to prepayments) of the ~~2018B Second~~ Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that clauses (~~or in the case~~ i) and (ii) shall not apply to up to $90,000,000 of New Term Loans as elected by the Borrower; provided, further, that ~~are Refinancing Commitments~~with respect to any New Term Loan, ~~no shorter than~~ only during the period commencing on the Closing Date and ending on the day before the date that is 18 months after the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans, respectively, in respect of the Initial Term Loans ~~being refinanced) and (iii) all other terms applicable~~ by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50%. (e) The terms and provisions of ~~each Series that differ from~~ any New Revolving Credit Commitments and the ~~existing Term~~ related New Revolving Credit Loans shall be ~~reasonably acceptable~~ identical to the ~~Administrative Agent (as evidenced~~ Class of Commitments and related Revolving Credit Loans subject to increase by ~~its execution of~~ such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that may be agreed to among the ~~applicable Joinder Agreement)~~Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. The terms and provisions of the ~~New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020~~ Additional Revolving Credit Loans and ~~the 2020~~ Additional Revolving Credit ~~Commitments~~Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that ~~New~~ (i) the applicable maturity date for the Additional Revolving Credit ~~Commitments may provide for (a) a commitment termination date that is later~~ Commitment of each Series shall be no earlier than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit ~~Commitments being refinanced~~Maturity Date; (ii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and ~~(b) fees and pricing as agreed between~~ amortization schedule applicable to any Additional Revolving Credit Loans shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder; and (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Additional Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Additional Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any ~~time~~ time, and from time to ~~time~~ time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be ~~identical to the Term Loans of the Existing Term Loan Class from which they are~~ on terms to be ~~converted except~~ agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below) ), and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any ~~New~~ Incremental Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments) (a “Revolving Credit Extension Request”~~Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which ~~terms~~ shall be ~~identical to those applicable to the Existing Revolving Credit Commitments from which they are~~ on terms to be ~~extended (~~agreed between the ~~“Specified Existing Revolving Credit Commitment”) except (x) all or any of~~ Borrower and the ~~final maturity dates of such~~ Lender providing Extended Revolving Credit ~~Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit~~ Commitments; provided, ~~(y)~~however, (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit ~~Commitments~~ Commitments”) and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment), in each case, to the extent provided in the applicable Extension ~~Amendment; provided that, notwithstanding~~ Amendment Notwithstanding anything to the contrary in this Section ~~2.14(f)~~ 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any ~~Old~~ Original Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Original Revolving Credit Commitments and (2) ~~assignments and participations of~~ no Extended Revolving Credit Commitments may be optionally permanently prepaid and ~~Extended Revolving Credit Loans shall be governed by~~ terminated prior to the ~~same assignment and participation provisions applicable to~~ date on which the Specified Existing Revolving Credit Commitments from which they were converted is permanently repaid in full and terminated, except in accordance with the ~~Revolving Credit Loans related to such Commitments set forth in~~ last sentence of Section ~~13.6~~5.1(a). No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coIncrementa

Appears in 2 contracts

Sources: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)

Incremental Facilities. ~~(a)~~ The US Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more (x) ~~additional tranches of term loans~~ new Tranche H Term Loan Commitments (~~the commitments thereto,~~ the “New Tranche H Term Loan Commitments”) and/or new Tranche I Term Loans Commitments (the “New Tranche I Term Loan Commitments”) and/or (y) ~~increases in~~ new Revolving Credit Commitments (the “New Revolving Credit Commitment”) and/or new Extended Revolving Credit Commitments (the “New Extended Revolving Loan Commitments” and, together with the New Tranche H Term Loan Commitments, the New Tranche I Term Loan Commitment and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not ~~in excess of the Maximum Incremental Facilities Amount in the aggregate and not~~ less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $250,000,000 and all such New Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $5,000,000 in excess of that amount, and in any event, by an aggregate amount which, when taken together with the principal amount of any Permitted Additional Notes, shall not exceed $250,000,000 in the aggregate. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the US Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent~~. The~~ ; provided, that the US Borrower ~~may approach any Lender or any Person (other than a natural person)~~ shall first offer the Lenders to provide all ~~or a portion~~ of the New Loan ~~Commitments~~Commitments prior to offering any other Person that is an eligible assignee pursuant to Section 14.6(b); provided further, that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. ~~In each case, such~~ Such New Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; ~~provided~~ provided, that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any Series of New Tranche H Term ~~Loans~~ Loans, New Tranche I Term Loans, New Revolving Loans, or New Extended Revolving Loans, each of the conditions set forth in Section 7 7.1 and 7.2 shall be satisfied; (~~iii~~3) the US Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Sections 10.9 and 10.10 as of the last day of the most recently ended fiscal quarter after giving effect to such New Loan Commitments and any investment to be consummated in connection therewith; (4) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the US Borrower and Administrative Agent, and each of which shall be recorded in the Register by the US Borrower and Administrative Agent, and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(b); (iv5) the US Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v6) the US Borrower shall deliver or cause to be delivered (i) a certificate of the US Borrower and Holdings dated the Increased Amount Date, substantially in the form of Exhibit P, with appropriate insertions, executed by the President or any Vice President and the Secretary or any Assistant Secretary of such Credit Party, and attaching the documents referred to in Section 6.7 and 6.8 and, where applicable, certifying as to the incumbency and specimen signature of each officer executing any Credit Document or any other document delivered in connection therewith on behalf of such Credit Party, (ii) the executed legal opinions or of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP and ▇▇▇ ▇▇▇▇▇▇▇, general counsel of the Credit Parties, in each case, substantially in the forms previously delivered in connection with this Agreement and (iii) any other applicable documents reasonably ~~requested~~ required by the Administrative Agent in connection with any such transaction. Any New Tranche H Term Loans or New Tranche I Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Tranche H Term Loans ~~for all purposes of this Agreement; provided that (A) if the use of proceeds of such~~ or New ~~Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New~~ Tranche H Term ~~Loan Lenders~~Loans, as applicable, ~~customary “SunGard” limited conditionality shall apply to the effectiveness~~ for all purpose of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) this Agreement. On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments or New Extended Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with New Revolving Loan Commitments or Extended Revolving Credit ~~Commitments~~ Commitments, as applicable, shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) or a New Extended Revolving Loan Commitments (each, a “New Extended Revolving Loan Lender”), as applicable, and each of the New Revolving Loan Lenders or New Extended Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments or Extended Revolving Credit Commitments, as applicable, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Credit Loans or Extended Revolving Credit Loans, as applicable, outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving Credit Loans or Extended Revolving Credit Loans, as applicable, will be held by existing Lenders with Revolving Credit ~~Lenders~~ Loans or Extended Revolving Credit Loans, as applicable, and New Revolving Loan Lenders or New Extended Revolving Loan Lenders, as applicable, ratably in accordance with their Revolving Credit Commitments or Extended Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments or New Extended Revolving Credit Commitments to the New Revolving Credit Commitments or Extended Revolving Credit Commitments, (b) each New Revolving Credit Commitment or New Extended Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment or an Extended Revolving Credit Commitment, as applicable, and each Loan made thereunder (a “New Revolving Loan” or a “New Extended Revolving Loan”, as applicable) shall be deemed, for all purposes, a Revolving Credit Loan or an Extended Revolving Credit Loan and (c) each New Revolving Loan Lender and New Extended Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment or New Extended Revolving Loan Commitment, as applicable, and all matters relating thereto~~. (c)~~ . On any Increased Amount Date on which any New Tranche H Term Loan Commitments or New Tranche I Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co,

Appears in 2 contracts

Sources: Credit Agreement (Rockwood Specialties Group Inc), Credit Agreement (Rockwood Holdings, Inc.)

Incremental Facilities. (a) The Borrower may by written notice to ~~Administrative~~ the Agent elect to request ~~the establishment~~ theestablishment of one or more ~~(x)~~ additional tranches of term loans or new Term Commitments to increaseany existing Class of Term Loans (~~the commitments thereto,~~ the “New Term ~~Loan~~ Commitments”) ~~and/or~~ in an amount at any time not toexceed (~~y) increases~~ other than in ~~Revolving Credit Commitments (~~the ~~“New Revolving Credit Commitments” and, together with the~~ case of any New Term ~~Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the~~ Commitments with respect to Refinancing Term Loans)the Maximum Incremental ~~Facilities~~ Amount ~~in the aggregate~~ at such time and not less than $~~100,000,000~~ 25.0 million individually (or suchlesser amount which shall be approved by the Agent or such lesser amount ~~as (x) may be approved by the Administrative Agent or (y)~~ that shall constitute the ~~difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date~~entireremaining availability hereunder). Each such notice shall specify the date (each, an “Increased ~~Amount Date~~AmountDate”) on which the Borrower proposes that the New ~~Loan~~ Term Commitments shall be effective, which ~~shall be~~ shallbe a date not less than ~~ten~~ five Business Days after the date on which such notice is delivered to the ~~Administrative~~ Agent(or such shorter period as may be agreed by the Agent~~. The Borrower may approach~~ ); provided that any Lender offered or ~~any Person (other than a natural person) to~~ approachedto provide all or a portion of the New ~~Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan~~ Term Commitments may elect or decline, in its sole discretion, ~~to provide~~ toprovide a New ~~Loan~~ Term Commitment. ~~In each case, such~~ Such New ~~Loan~~ Term Commitments shall become ~~effective~~ effective, as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply.such-71- (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto.[Reserved] (c) On any Increased Amount Date on which any New Term ~~Loan~~ Commitments of ~~any Series~~ anyClass are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender ~~with a~~ witha New Term ~~Loan~~ Commitment (each, a “New Term Loan Lender”) of any ~~Series~~ Class shall make a Term Loan ~~to the~~ tothe Borrower (a “New Term Loan”) in an amount equal to its New Term ~~Loan~~ Commitment of such ~~Series~~Class, ~~and (ii~~and(ii) each New Term Loan Lender of any ~~Series~~ Class shall become a Lender hereunder with respect to the ~~New Term Loan~~ NewTerm Commitment of such ~~Series~~ Class and the New Term Loans of such ~~Series~~ Class made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term ~~Loan Commitments of any Series shall~~ Commitmentsshall be, except as otherwise set forth herein or in the applicable ~~Joinder Agreement~~supplement or amendment relatingthereto, identical to ~~one or more Classes of~~ the existing ~~Initial~~ Term Loans; provided that (i) the ~~applicable~~ final maturity date of the New ~~Term Loan Maturity Date of each Series~~ TermLoans shall be no earlier than ~~the 2018B Second New Term Loan Maturity Date~~ (or x) in the case of ~~New~~ Refinancing Term ~~Loans that are Refinancing Commitments~~Loans, ~~no earlier than that of~~ the Term Loans ~~being refinanced~~refinancedtherewith and (y) ~~and~~ in the case of any other New Term Loans, the Latest Maturity Date, and, in the case ofall New Term Loans, the mandatory prepayment ~~rights (other than scheduled amortization) of~~ provisions applicable to the New Term Loans ~~and the existing~~ shall notrequire that any mandatory prepayment pursuant to Section 2.09 apply to such New Term Loans ~~shall be identical~~on agreater basis than ratable basis then outstanding Term Loans, (ii) the ~~fees, pricing~~ optional prepayment provisions,rate of interest and the amortization schedule applicable to ~~the~~ any New Term Loans of each Series shall ~~be determined~~ bedetermined by the Borrower and the applicable new Lenders and shall be set forth in ~~each applicable Joinder Agreement~~the applicablesupplement relating thereto; provided that (A) the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~all~~ any New TermLoans will be no shorter than (x) in the case of Refinancing Term Loans, the Weighted Average Life toMaturity of the Term Loans refinanced, and (y) in the case of any other New Term Loans, the thenremaining Weighted Average Life to Maturity of any Class of Term Loans and (B) if the Effective Yieldof any New Term Loans (other than Refinancing Term Loans) established on any Increased AmountDate occurring on or prior to the six (6) month anniversary of the Amendment No. 45 Effective Dateexceeds the Effective Yield of the 2021 Incremental Term Loans by more than 100 basis points, theApplicable Rates for the 2021 Incremental Term Loans shall be increased to the extent necessary so that,after giving effect to such increase, the Effective Yield of the 2021 Incremental Term Loans is equal tothe Effective Yield of such New Term Loans minus 100 basis points, (iii) New Term Loans shall ~~be no shorter than the weighted average life to maturity~~ not beguaranteed by any Subsidiary of the ~~2018B Second New Term Loans (or in~~ Borrower that is not a Loan Party and shall be secured only byCollateral on a pari passu basis with the ~~case of New Term Loans that are Refinancing Commitments, no shorter than that of~~ other Obligations pursuant to the ~~Term Loans being refinanced)~~ Collateral Documents and (~~iii) all~~ iv)all other terms applicable to the New Term Loans of each Series that differ from the existing Term ~~Loans shall~~ Loansshall be ~~reasonably acceptable~~ no more favorable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New ~~Revolving Credit Commitments.~~ Term Loans than those applicable to theTerm Loans (etaken as a whole) ~~Each Joinder Agreement may, without~~ (except for covenants or other provisions applicable only to periods afterthe Latest Maturity Date); provided that if any financial maintenance covenant is added for the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14.benefit of-72- (i) The Borrower may at any time and from time to time request that all or ~~a portion~~ aportion of the Term Loans of under any ~~Class~~ Term Loan Facility (an “Existing ~~Term Loan~~ Class”) be converted to ~~extend the~~ extendthe scheduled maturity date(s) of any payment of principal with respect to all or a portion of ~~any principal~~ anyprincipal amount of such Term Loans and/or amended to lower the Effective Yield thereof (any ~~such Term~~ suchTerm Loans which have been so ~~converted~~converted and/or extended, “Extended Term Loans”) and to provide ~~for other~~ forother terms consistent with this Section ~~2.14(f~~2.19(e). In order to establish any Extended Term Loans, ~~the Borrower~~ theBorrower shall provide a notice to the ~~Administrative~~ Agent (who shall provide a copy of such notice to each of ~~the Lenders~~ theLenders of the applicable Existing ~~Term Loan~~ Class) (a an “~~Term Loan~~ Extension Request”) setting forth the proposed terms ~~of the~~ ofthe Extended Term Loans to be established, which shall be identical to the Term Loans of the ~~Existing Term Loan Class~~ ExistingClass from which they are to be converted except (xw) ~~the scheduled final maturity date shall be extended and~~ all or any of the scheduled amortization ~~payments of~~ paymentsof principal of the Extended Term Loans may be delayed to later dates than the scheduled ~~amortization of~~ amortizationof principal of the Term Loans of such Existing ~~Term Loan Class~~ Class, (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) x) (A) the interest ~~margins with respect~~ rate and fee provisions withrespect to the Extended Term Loans may be ~~higher or lower than the interest margins for~~ different from those applicable to the Term Loans of suchExisting Class (and Extended Term Loans may provide for prepayment protection that is different fromthose applicable to such Existing ~~Term Loan Class~~ Class) and/or (B) additional fees may be payable to the ~~Lenders providing~~ Lendersproviding such Extended Term Loans in addition to or in lieu of any increased margins contemplated ~~by the~~ bythe preceding ~~clause~~ subclause (A), ~~in each case,~~ (y) the amendment or supplement to ~~the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its~~ this Agreement providing for suchExtended Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms ~~consistent with this Section 2.14(f). In order~~ applicable to ~~establish any~~ such Extended ~~Revolving Credit Commitments, the Borrower shall provide a notice~~ Term Loans so long aseither (A) such additional terms do not apply until all Term Loans and Term Commitments outstandingimmediately prior to the ~~Administrative Agent (who shall provide a copy~~ establishment of such ~~notice~~ Extended Term Loans have been repaid, terminated orreturned as applicable, (B) such additional terms are less favorable to ~~each of~~ the ~~Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms~~ holders of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates TermLoans than the ~~final maturity dates of the Specified~~ corresponding Existing ~~Revolving Credit Commitments,~~ Class or (~~y) (A~~C) ~~the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B)~~ such additional ~~fees may be payable to the~~ terms have been approved by theRequired Lenders ~~providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A)~~ and (z) the ~~revolving credit commitment fee rate with respect to~~ mandatory prepayment rights of the Extended ~~Revolving Credit Commitments~~ Term Loans and suchExisting Class may be ~~higher or lower~~ different so long as the proportion (if any) of the proceeds thereof to which suchExtended Term Loans are entitled is no greater on a proportionate basis than the ~~Revolving Credit Commitment Fee Rate for~~ portion of suchproceeds to which the ~~Specified~~ Existing ~~Revolving Credit Commitment, in each case,~~ Class is entitled to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)receive. (~~iii~~ii) The Borrower shall provide the applicable Extension Request at least ~~ten~~ five (~~10) Business~~ 5)Business Days ~~(or such shorter period as may be agreed by the Administrative Agent)~~ prior to the date on which Lenders under the ~~applicable~~ Existing Class ~~or Existing Classes~~ are requested to ~~respond~~respond (orsuch shorter period as may be agreed by the Agent). Any Lender (an “Extending Lender”) wishing ~~to have~~ tohave all or a portion of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class ~~or Existing Classes~~ subject to such Extension Request ~~converted into~~ convertedinto Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ shall notify the ~~Administrative~~ Agent (an “Extension Election”) on or prior to the ~~date specified~~ datespecified in such Extension Request of the amount of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class ~~or Existing Classes subject to such Extension Request that~~ which it ~~has elected~~ haselected to convert into Extended Term ~~Loans or Extended Revolving Credit Commitments, as applicable~~Loans. In the event that the aggregate amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the~~ Loans ofthe Existing Class ~~or Existing Classes~~ subject to Extension Elections exceeds the amount of Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable, requested pursuant~~ requestedpursuant to the Extension Request, Term Loans ~~or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes~~ subject to Extension Elections shall be converted ~~to Extended~~ toExtended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ on a pro rata basis based on the amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans included in each suchExtension Election (subject to such rounding as the Agent deems expedient). Any Extended Term Loansshall be established on the date set forth in the amendment or supplement to this Agreement entered intoby the Borrower, the other Loan Parties and the Agent pursuant to this Section 2.19(e) (it beingunderstood that by providing an Extension Election~~. Notwithstanding~~ , an Extending Lender will agree to be boundthereby). (f) Each amendment or supplement to this Agreement pursuant to this Section 2.19may, without the ~~conversion~~ consent of any ~~Existing Revolving Credit Commitment (~~other ~~than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment~~Lenders, effect such ~~Extended Revolving Credit Commitment shall~~ amendments to this Agreement and the otherLoan Documents as may be ~~treated identically to all other Old Revolving Credit Commitments for purposes~~ necessary or appropriate, in the opinion of the ~~obligations~~ Agent, to (i) effect theprovision of ~~a Revolving Credit Lender~~ this Section 2.19 or (ii) to the extent the terms and conditions of the New Term Loans aremore favorable to the Lenders than comparable terms existing in ~~respect~~ the Loan Documents, to bring the terms-73- (g) The provisions of ~~Swingline Loans under~~ this Section ~~2.1(c)~~ 2.19 shall override any provisions of Section 9.02to the contrary and, for the avoidance of doubt, Section 9.02(b).ARTICLE IIIREPRESENTATIONS AND WARRANTIESEach Loan Party represents and ~~Letters of Credit under Article~~ warrants to the Lenders that:SECTION 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co.

Appears in 1 contract

Sources: Incremental Facility Amendment to Credit Agreement (Clean Harbors Inc)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term ~~loans (the~~ loans(the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”) and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; and, together with the New Revolving Credit Commitments and the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective~~, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; ~~provided~~ provided, further, that (i) no ~~Default or~~ Event of Default (except in connection with a Limited Condition Transaction, in which case only no Event of Default under Section 11.1 or Section 11.5 shall exist at the time a definitive purchase agreement is entered into for such Limited Condition Transaction) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , (ii) ~~both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans~~[reserved], ~~each of the conditions set forth in Section 7 shall be satisfied;~~ (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d);~~ 5.4(e) and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement~~; provided that (A) if the use of proceeds of such~~ . Each New Loan ~~Commitments is an acquisition or investment permitted under this Agreement, if agreed among~~ shall be secured by the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu same Collateral securing all of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applyother Obligations hereunder. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments and (b) with respect to Incremental Revolving Credit Commitments, (bi) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided, that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such ▇▇▇▇▇▇’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Credit Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and together with the Incremental Revolving Credit Loans, the “New Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ Initial Term ~~Loans (or in the case of New Term Loans that are Refinancing Commitments~~Loans, ~~no shorter than that of the Term Loans being refinanced) and~~ (iii) ~~all other terms~~ the pricing, interest rate margins, discounts, premiums, rate floors, fees, call protection (if any) and amortization schedule applicable to ~~the~~ any New ~~Term Loans of each Series that differ from the existing~~ Term Loans shall be determined by the Borrower and the applicable New Term Loan Lenders; and (iv) to the extent such terms and documentation are not substantially consistent with the Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be (i) on market terms and conditions (as determined by the Borrower in good faith) or (ii) reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced by its execution~~ except for covenants or other provisions applicable only applicable after the Latest Maturity Date or any existing New Term Loan existing at the time such New Term Loan is incurred) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any New Term Loan, no consent shall be required from the Administrative Agent or any of the Term Loan Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable ~~Joinder Agreement~~after the Latest Maturity Date)~~. The terms and provisions of the New Revolving Loans and New~~ . (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the ~~2020~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the ~~2020~~ Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments~~; provided~~ , (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that ~~New~~ the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may ~~provide for (a)~~ constitute a ~~commitment termination date that is later than~~ separate Class or Classes, as the ~~commitment termination date~~ case may be, of Commitments from the ~~2020~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (~~or in~~ viii) the ~~case~~ pricing, fees, maturity and other immaterial terms of ~~New~~ the Additional Revolving Credit ~~Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced)~~ Loans may be different and ~~(b) fees and pricing as agreed between~~ shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and (z) a financial maintenance covenant may be added for the benefit of any Extended Term Loans 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; provided that, notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full except in accordance with the last sentence of Section 5.1. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments) (a “Revolving Credit Extension Request”~~Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) ), except (xw) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) x) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (RBC Bearings INC)

Incremental Facilities. (a) The ~~Borrower~~ Borrowers may by written notice to Administrative Agent elect to ~~request~~ increase the ~~establishment of one~~ Total Commitment (each such increase, a “Commitment Increase”, and each Person issuing, or ~~more (x) additional tranches of term loans (the commitments thereto~~Lender increasing, ~~the~~ its Commitment, an “~~New Term Loan Commitments~~Additional Commitment Lender”) ~~and/or (y) increases~~ such that the Total Commitment does not exceed $1,000,000,000. Each such increase shall be in ~~Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by~~ an aggregate amount ~~not in excess~~ of ~~the Maximum Incremental Facilities Amount in the aggregate and~~ not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount as ~~(x)~~ may be approved by the Administrative ~~Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date~~Agent). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the ~~Borrower proposes~~ Borrowers propose that the ~~New Loan Commitments~~ Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The ~~Borrower~~ Borrowers may approach any Lender or any Person (other than a natural person, Holdings, the Lead Borrower and any Subsidiary)(it being understood if such Person is an Affiliated Lender, such Person is subject to the requirements of Section 13.6(h) as if such Commitment Increase were an assignment described therein) to provide all or a portion of the ~~New Loan Commitments~~Commitment Increase; provided that any Lender offered or approached to provide all or a portion of the ~~New Loan Commitments~~ Commitment Increase may elect or decline, in its sole discretion, to provide a ~~New Loan Commitment~~Commitment Increase. In each case, such ~~New Loan Commitments~~ Commitment Increase shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such ~~New Loan Commitments~~Commitment Increase, ~~as applicable;~~ (ii) ~~both before~~ all representations and ~~after giving~~ warranties made by any Credit Party contained herein or in the other Credit Documents shall be true and correct in all material respects with the same effect ~~to the making of any Series of New Term Loans or New Revolving Loans, each~~ as though such representations and warranties had been made on and as of the ~~conditions set forth~~ date of such Credit Event (except where such representations and warranties expressly relate to an earlier date, in ~~Section 7~~ which case such representations and warranties shall ~~be satisfied;~~ have been true and correct in all material respects as of such earlier date), (iii) the ~~New Loan Commitments~~ Commitment Increase shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrowers, the Additional Commitment Lenders and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , (iv) the ~~Borrower~~ Borrowers shall make any payments required pursuant to Section 2.11 in connection with the ~~New Loan Commitments~~Commitment Increase, as applicable; , and (v) the ~~Borrower~~ Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) ~~On any Increased Amount Date on which New Revolving Credit Commitments are effected~~In connection with Commitment Increases hereunder, ~~subject~~ the Lenders and the Borrowers agree that, notwithstanding anything to the ~~satisfaction~~ contrary in this Agreement, (i) the Borrowers shall, in coordination with the Administrative Agent, (A) repay outstanding Revolving Loans of certain Lenders, and obtain Revolving Loans from certain other Lenders (including the Lenders providing the applicable Commitment Increase), or (B) take such other actions as reasonably may be required by the Administrative Agent, in each case to the extent necessary so that all of the ~~foregoing terms and conditions, (a)~~ Lenders effectively participate in each of the ~~Lenders with~~ outstanding Revolving ~~Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment~~ Loans pro rata on the basis of their Pro Rata Shares, as applicable (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, determined after giving effect to ~~all such assignments~~ any increase in the Commitments pursuant to this Section 2.14), and ~~purchases~~(ii) the Borrowers shall pay to the Lenders any costs of the type referred to in Section 2.11 in connection with any repayment and/or Revolving Loans required pursuant to preceding clause (i). Without limiting the obligations of the Borrowers provided for in this Section 2.14, the ~~Revolving Credit Loans~~ Administrative Agent and the Lenders agree that they will ~~be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably~~ use their commercially reasonable efforts to minimize the costs of the type referred to in ~~accordance~~ Section 2.11 which the Borrowers would otherwise incur in connection with ~~their Revolving Credit Commitments after giving effect to~~ the ~~addition~~ implementation of ~~such New Revolving Credit Commitments to~~ an increase in the ~~Revolving Credit~~ Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.[Reserved] (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments.[Reserved] (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such technical amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The ~~Borrower~~ Borrowers may at any time and from time to time request that all or a portion of the ~~Term~~ Commitments existing at the time of such request (each, an “Existing Commitment”) (and Loans related thereto (“Existing Loans”)) of any Class (an “Existing ~~Term Loan~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) with (A) the interest margins with respect to the Extended ~~Term~~ Loans may be higher or lower than the interest margins for the ~~Term~~ Loans of such Existing ~~Term Loan~~ Class and/or (B) additional fees may be payable to the Lenders providing such Extended ~~Term~~ Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment; provided that each optional prepayment of Extended Loans accompanied by a corresponding permanent reduction in Extended Commitments shall be made in compliance with Section 5.1(b). No Lender shall have any obligation to agree to have any of its ~~Term~~ Loans of any Existing ~~Term Loan~~ Class converted into Extended ~~Term~~ Loans pursuant to any Extension Request. Any Extended ~~Term~~ Loans of any Extension Series shall constitute a separate Class of ~~Term~~ Loans from the Existing ~~Term Loan~~ Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date).[Reserved] (iii) The ~~Borrower~~ Borrowers shall provide the applicable Extension Request at least ~~ten~~ five (105) Business Days ~~(or such shorter period as may be agreed by the Administrative Agent)~~ prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class or Existing Classes subject to such Extension Request converted into Extended ~~Term~~ Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended ~~Term Loans or Extended Revolving Credit Commitments~~Loans; provided that if any Lenders of an Existing Class fail to respond, ~~as applicable~~such Lenders will be deemed to have declined to extend their Loans. In the event that the aggregate amount of ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended ~~Term~~ Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ requested pursuant to the Extension Request, ~~Term~~ Loans ~~or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments~~ of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended ~~Term~~ Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ on a pro rata basis based on the amount of ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans included in each such Extension Election. (iv) Extended Loans shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(f)(iv) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Commitments in an aggregate principal amount that is less than $75,000,000. Notwithstanding anything to the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender contrary in ~~respect of Swingline Loans under~~ this Section ~~2.1(c~~2.14(f) and ~~Letters~~ without limiting the generality or applicability of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations Section 13.1 to ~~make Swingline Loans and issue Revolving Letters of Credit may be co~~any Section 2.14 Additional Amendments

Appears in 1 contract

Sources: Credit Agreement (Del Monte Foods Co)

Incremental Facilities. (a) ~~The~~ Borrower may by written notice to the Administrative Agent elect to ~~request~~ request, (i) prior to the Maturity Date, the establishment of one or more new term loan commitments (xa “Term Loan Increase”) ~~additional tranches~~ or a new class of term loans (~~the commitments thereto~~collectively with any Term Loan Increase, the “New Term Loan Commitments~~”) and/or (y) increases in Revolving Credit Commitments (~~” or the “~~New Revolving Credit~~ Incremental Commitments~~” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), ~~by an aggregate~~ in a minimum amount ~~not in excess~~ of ~~the Maximum Incremental Facilities Amount in the aggregate and not less than~~ $~~100,000,000 individually~~ 10,000,000 (or such lesser amount as ~~(x) may~~ shall be approved by ~~the~~ Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum~~ $40,000,000 minus all Incremental ~~Facilities Amount~~ Commitments, Permitted Incremental Debt, First Lien Incremental Loans and ~~all such New Loan Commitments~~ Permitted Incremental First Lien Debt obtained ~~on or~~ prior to such date)) and integral multiples of $5,000,000 in excess of that amount; provided, however, the aggregate amount of all such Incremental Commitments shall not exceed an amount equal to (A) $40,000,000 minus (B)(i) the aggregate principal amount of First Lien Incremental Loans and (ii) the aggregate amount of Permitted Incremental Debt hereunder and Permitted Incremental First Lien Debt. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Borrower proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to Administrative Agent and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Term Loan Lender,” as applicable) to ~~provide all or a~~ whom Borrower proposes any portion of ~~the~~ such New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Administrative Agent and Arrangers may elect or decline to arrange such New Term Loan Commitments in their sole discretion (for the avoidance of doubt, Borrower shall have no obligation to offer the Administrative Agent or Arrangers the opportunity to arrange such New Term Loan Commitments), and any Lender ~~offered or~~ approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. ~~In each case, such~~ Such New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date~~; provided that~~ . (ib) ~~no Default or Event~~ Any Incremental Commitments effected through the establishment of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more ~~Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each~~ new tranches of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New new Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate ~~series (a “Series”)~~ Class of ~~New Term Loans~~ Incremental Commitments for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) . On any Increased Amount Date on which any ~~New~~ Incremental Term ~~Loan~~ Commitments of any ~~Series~~ Class are ~~effective~~effected (including through any Term Loan Increase), subject to the satisfaction of the ~~foregoing~~ terms and ~~conditions~~conditions in this Section 2.24, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of ~~any Series~~ such Class shall make a Loan to ~~the~~ Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such ~~Series,~~ Class and (ii) each New Term Loan Lender of ~~any Series~~ such Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such ~~Series~~ Class and the ~~New~~ Incremental Term Loans of such ~~Series~~ Class made pursuant thereto. (dc) ~~The terms~~ Notwithstanding the foregoing, no Incremental Commitments shall be effective, and ~~provisions~~ no Incremental Loans shall be made, unless, on the applicable Increased Amount Date, (1) no Event of Default shall exist before or after giving effect to such Incremental Commitments or Incremental Loans, as applicable; (2) both before and after giving effect to the ~~New Term Loans and New Term Loan Commitments~~ making of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case Class of New Term ~~Loans that are Refinancing Commitments~~Loans, ~~no earlier than that~~ each of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be conditions set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except clauses (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this of Section ~~2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments~~ 3.1 shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be cosatisfied;

Appears in 1 contract

Sources: Second Lien Credit and Guaranty Agreement (American Casino & Entertainment Properties LLC)

Incremental Facilities. (a) ~~The~~ At any time and from time to time following Successful Syndication, but prior to June 30, 2008, the Borrower may by written notice to the Administrative ~~Agent elect to~~ Agent, request the establishment of one or more ~~(x) additional tranches of term loans (the commitments thereto, the “~~New ~~Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term~~ Loan Commitments, ~~the “New Loan Commitments”), by~~ in an ~~aggregate~~ amount not in excess of (i) with respect to New Loan Commitments established on or prior to the ~~Maximum Incremental Facilities Amount~~ Term Loan Commitment Termination Date, $250,000,000 in the aggregate and (ii) with respect to New Loan Commitments established after the Term Loan Commitment Termination Date, $500,000,000 in the aggregate, and in each case not less than $~~100,000,000~~ 20,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative ~~Agent~~ Agent) or ~~(y)~~ an integral multiple of $5,000,000 in excess thereof; provided that at no time shall ~~constitute~~ the ~~difference between~~ Aggregate Commitments and Loans outstanding hereunder exceed $1,250,000,000. For purposes of clarification, it is understood that the ~~Maximum Incremental Facilities Amount and all such~~ aggregate amount of New Loan Commitments ~~obtained on or~~ may exceed $250,000,000 only to the extent that the Borrower did not borrow the full amount available under the Term Loan Commitments prior to ~~such date)~~the Term Loan Commitment Termination Date. Each such notice shall ~~specify~~ set forth (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 15 Business Days after the date on which such notice is delivered to the Administrative Agent~~. The Borrower may approach any~~ ; and (B) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Loan Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of ~~the~~ such New Loan ~~Commitments;~~ Commitments be allocated and the amounts of such allocations (provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment). ~~In each case, such~~ The establishment of the New Loan Commitments shall ~~become effective as of~~ be subject to the ~~applicable Increased Amount Date; provided that~~ following conditions: (i1) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of any Series of New ~~Term Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 4.02 shall be satisfied; (~~iii~~3) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrower, the Administrative Agent and ~~Administrative Agent~~each applicable New Loan Lender, ~~and~~ each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~10.15; and (v4) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New ~~Term~~ Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New ~~Term~~ Loans for all purposes of this Agreement~~; provided that (A) if the use of proceeds of such~~ . Such New Loan Commitments ~~is an acquisition or investment permitted under this Agreement~~shall become effective as of such Increased Amount Date; provided, ~~if agreed among~~ however, that the Borrower shall not be permitted to make any Borrowing with respect to New Loans until the earlier of (a) the date on which the Term Loans have been fully funded and (b) the ~~New Revolving Loan Lenders and/or New~~ Term Loan ~~Lenders~~Commitment Termination Date, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applyhas occurred. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New ~~Term~~ Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New ~~Term~~ Loan Lender of any Series shall become a Lender hereunder with respect to the New ~~Term~~ Loan Commitment of such Series and the New ~~Term~~ Loans of such Series made pursuant ~~thereto~~thereto and shall automatically and without further act be deemed to have assumed its Pro Rata Share of participations in outstanding Swing Line Loans. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of each notice delivered by the Borrower pursuant to the first sentence of Section 2.13(a) and in respect thereof, the Series of New Loan Commitments. (d) The terms and provisions of the New ~~Term~~ Loans and New ~~Term~~ Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes~~ the terms and provisions of the ~~existing Initial~~ Term Loans~~; provided that~~ . In any event, (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) maturity date of the New ~~Term Loans and the existing Term~~ Loans shall be ~~identical,~~ the Maturity Date and shall not be subject to amortization and (ii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New ~~Term~~ Loans of each Series shall be determined by the Borrower and the applicable ~~new~~ New Loan Lenders and shall be set forth in each applicable Joinder Agreement; ~~provided~~ provided, however, that to the extent that the ~~weighted average life to maturity~~ interest rate payable in respect of ~~all~~ the New ~~Term~~ Loans ~~shall be no shorter~~ (whether in the form of interest, fees, original issue discount or a combination of any thereof) is higher by more than 0.25% than the ~~weighted average life to maturity of the 2018B Second New Term Loans (or~~ interest rate payable in ~~the case of New Term Loans that are Refinancing Commitments, no shorter than that~~ respect of the Term Loans ~~being refinanced) and (iii) all other terms~~ immediately prior to the incurrence of any such New Loans, the interest rates applicable to ~~the New Term Loans of each Series that differ from~~ the existing Term Loans shall ~~be reasonably acceptable~~ increased to provide the existing Term Lenders the same interest rate provided to the New Loan Lenders. The Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower ~~and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement~~ may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.13. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (Wynn Resorts LTD)

Incremental Facilities. (a) ~~The~~ At any time following the Third Restatement Effective Date, the Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in or replacement classes of Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount (which amount for purposes of this limitation shall be calculated exclusive of (A) the amount any New Term Loan Commitments in respect of Refinancing Term Loans and Ratio First Lien Indebtedness and (B) the amount of any Replacement Revolving Credit Commitments that were not established in reliance on subclause (I)(y) of the proviso to Section 2.14(b)(ii)) not in excess of (when taken together with the ~~Maximum Incremental Facilities Amount~~ amount (the “Excess Amount”) by which the aggregate amount, without duplication, of the ABL Facility and any Permitted Receivables Financing exceeds $3,750,000,000 on the date such New Loan Commitments become effective) $1,500,000,000 in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $1,500,000,000 and all such New Loan Commitments (when taken together with the Excess Amount on the date such New Loan Commitments become effective) obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as the Administrative Agent may reasonably agree) after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in Section 10.8 as of the last day of the most recently ended fiscal quarter after giving effect to such New Loan Commitments and any Investment to be consummated in connection therewith; (iv) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (ivv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (vvi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that (A) if~~ Agreement unless they are specified to be an increase in any previously established class of Term Loans. The Borrower shall give the ~~use~~ Administrative Agent prompt written notice of ~~proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among~~ any increase in the ~~Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments~~ aggregate amount committed in ~~lieu~~ respect of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applyABL Facility. (bi) On any Increased Amount Date on which New Revolving Credit Commitments (other than Replacement Revolving Credit Commitments) are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable ~~currency(ies)~~currencies, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (ii) At any time following the Third Restatement Effective Date, at the option of the Borrower and the New Lenders providing such New Revolving Credit Commitments, any New Revolving Credit Commitments may be in the form of one or more separate classes of revolving credit commitments (the “Replacement Revolving Credit Commitments”) which shall constitute a separate Class of Commitments from the Revolving Credit Commitments (each such separate Class of Replacement Revolving Credit Commitments, a “Replacement Revolving Credit Series” and each Loan thereunder, a “Replacement Revolving Credit Loan”) shall constitute a separate Class of Loans from the Revolving Credit Loans (it being understood that Replacement Revolving Credit Commitments of a single Replacement Revolving Credit Series may be established on more than one date); provided that: (I) the aggregate principal amount of Replacement Revolving Credit Commitments in effect at any time, when aggregated with the aggregate principal amount of Revolving Credit Commitments at such time, shall not exceed the sum of (x) (A) $2,000,000,000 plus (B) the amount of Replacement Revolving Credit Commitments previously established prior to such date pursuant to the following subclause (y) plus (y) solely to the extent the applicable Joinder Agreement provides that the Replacement Revolving Credit Commitments are being made in reliance on this subclause (y), the remainder if positive of (A) $1,500,000,000 minus (B) the Excess Amount on the date such Replacement Revolving Credit Commitments are established minus (C) the aggregate amount of New Term Loan Commitments (excluding New Term Loan Commitments for Refinancing Term Loans or Ratio First Lien Indebtedness) established on or prior to such date minus (D) the aggregate amount of Replacement Revolving Credit Commitments previously established in reliance on this subclause (y); (II) there shall be no more than three Classes, in the aggregate, of Revolving Credit Commitments and Replacement Revolving Credit Commitments outstanding at any time; (III) the terms of such Replacement Revolving Credit Commitments, except for the tenor of the Replacement Revolving Credit Commitments (which shall have a scheduled expiration date no earlier than the Revolving Credit Maturity Date), the size of any swingline loan and/or letter of credit subfacilities under such Replacement Revolving Credit Commitments and the applicable interest rates and Fees payable with respect to such Replacement Revolving Credit Commitments (which shall be as specified in the applicable Joinder Agreement), shall be substantially identical to the terms of the Revolving Credit Commitments or Replacement Revolving Credit Commitments being replaced thereby (unless otherwise consented to by the Administrative Agent); and (IV) in connection with the establishment of any Replacement Revolving Credit Commitments that will include swingline loan and/or letter of credit subfacilities, any amendment to this Agreement pursuant to Section 2.14(e) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially identical (except for the overall size of such subfacilities, which shall be specified in the applicable Joinder Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and any applicable swingline lender or letter of credit issuer thereunder. (iii) On any Increased Amount Date on which Replacement Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) the Revolving Credit Loans or Replacement Revolving Credit Loans, as applicable, of any existing Revolving Credit Lender who is providing a new Replacement Revolving Credit Commitment on such date and whose existing Revolving Credit Commitment or Replacement Revolving Credit Commitment, as applicable, is being reduced on such date pursuant to clause (a) of the first proviso to Section 4.2 (or the corresponding provision in any Joinder Agreement with respect to Replacement Revolving Credit Commitments) in connection therewith shall be converted into Replacement Revolving Credit Loans under such Lender’s new Replacement Revolving Credit Commitment being provided on such date in the same ratio as (x) the amount of such Lender’s new Replacement Revolving Credit Commitment bears to (y) the aggregate amount of such Lenders existing Revolving Credit Commitment or Replacement Revolving Credit Commitment of such Class prior to any reduction of such Lender’s Revolving Credit Commitment or Replacement Revolving Credit Commitment pursuant to clause (a) of the first proviso to Section 4.2 (or the corresponding provision in any Joinder Agreement with respect to Replacement Revolving Credit Commitments) in connection therewith and (b) each of the New Revolving Loan Lenders with Replacement Revolving Credit Commitments of the applicable Class shall purchase from each of the other Lenders with Replacement Revolving Credit Commitments of such Class, at the principal amount thereof and in the applicable currencies, such interests in the Replacement Revolving Credit Loans under such Class of Replacement Revolving Credit Commitments so converted or outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Replacement Revolving Credit Loans of such Class will be held by New Revolving Loan Lenders with such Class of Replacement Revolving Credit Commitments ratably in accordance with their respective Replacement Revolving Credit Commitments of such Class. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to ~~one or more Classes of~~ the existing ~~Initial~~ Tranche B-8 Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Tranche B-8 Term Loan Maturity Date ~~(or in~~ and the ~~case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and~~ mandatory prepayment and other payment rights ~~(other than scheduled amortization)~~ of the New Term Loans and the existing Tranche B-8 Term Loans (other than with respect to any Debt Incurrence Prepayment Event and any scheduled amortization) shall be identical, (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each ~~Series~~ Series, and the rights thereof (if any) to participate in any Debt Incurrence Prepayment Event, shall be determined by the Borrower and the applicable new Lenders and ~~shall be~~ set forth in ~~each~~ the applicable Joinder Agreement; ~~provided~~ provided, that (x) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ Tranche B-8 Term Loans and (or y) in ~~the case~~ no event shall any Series of New Term Loans be entitled to participate in any Debt Incurrence Prepayment Event on a basis that ~~are Refinancing Commitments~~would require a greater proportionate repayment thereof from any such Debt Incurrence Prepayment Event that would result in the proportionate repayment thereof from any such Debt Incurrence Prepayment Event, ~~no shorter than that~~ when added to the proportionate repayments required with respect to all other Classes of ~~the~~ Term Loans ~~being refinanced) and~~ then outstanding, exceeding the amount of Net Cash Proceeds from such Debt Incurrence Prepayment Event, (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Tranche B-8 Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement)) and (iv) the Joinder Agreement for any New Term Loans may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of the applicable Joinder Agreement. The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In ~~order~~ addition to ~~establish~~ any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and ~~all or~~ provisions in any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, ~~as the case may be, with respect~~ and any changes or amendments to ~~the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of~~ this ~~Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher~~ Agreement or ~~lower than the interest margins~~ any other Credit Document provided for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A)therein, in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that ~~all~~ are required or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided thatforegoing provisions of this Section 2.14, notwithstanding anything to the contrary in this Section ~~2.14(f~~2.14 and without limiting the generality or applicability of the provisions of Section 14.1 to any Section 2.14(e) ~~or otherwise~~Additional Amendments, any Joinder Agreement may provide for additional terms and/or additional amendments to this Agreement and the other Credit Documents (any such amendment a “Section 2.14(e) Additional Amendment”); provided that such Section 2.14(e) Additional Amendments do not become effective prior to the time that such Section 2.14(e) Additional Amendments have been consented to (including, without limitation, pursuant to (1) ~~the borrowing~~ consents applicable to holders of New Term Loans and ~~repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old~~ New Revolving Credit Commitments ~~shall be made on a pro rata basis with all other Old Revolving Credit Commitments~~ provided for in any Joinder Agreement and (2) ~~assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions~~ consents applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments holders of any ~~Existing Revolving Credit Class converted into~~ Extended ~~Revolving Credit~~ Term Loans ~~or Extended Revolving Credit Commitments pursuant to~~ provided for in any Extension ~~Request. Any Extended Revolving~~ Amendment) by such of the Lenders, Credit ~~Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments~~ Parties and ~~from any~~ other ~~Existing Revolving Credit Commitments~~ parties (~~together with any other Extended Revolving Credit Commitments so established on such date). (iii~~if any) ~~The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period~~ as may be required in order for such Section 2.14(e) Additional Amendments to become effective at such time in accordance with Section 14.1. It is understood and agreed by that, each Lender that has consented to Amendment No. 3 hereby has consented, and shall at the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall effective time thereof be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be codeemed to

Appears in 1 contract

Sources: Restatement Agreement (HCA Healthcare, Inc.)

Incremental Facilities. (a) ~~The Borrower~~ Company may by written notice to ~~Administrative Agent~~ GSCP elect to request (A) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Loan Commitments (any such increase, the "NEW REVOLVING LOAN COMMITMENTS") and/or (B) the establishment of one or more ~~(x) additional tranches of~~ new term ~~loans~~ loan commitments (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”"NEW TERM LOAN COMMITMENTS"), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $100,000,000 in the aggregate and not less than $~~100,000,000~~ 5,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent and GSCP or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $100,000,000 66 and all such New Revolving Loan Commitments and New Term Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an ~~“Increased Amount Date”~~"INCREASED AMOUNT DATE") on which ~~the Borrower~~ Company proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ (ten) 10 Business Days after the date on which such notice is delivered to GSCP and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~"NEW REVOLVING LOAN LENDER" or "NEW TERM LOAN LENDER", as applicable) to ~~provide all or a~~ whom Company proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any New Revolving Loan or Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.2 shall be satisfied; (~~iii~~3) Company and its Subsidiaries shall be in compliance with each of the covenants set forth in Section 6.6 on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter after giving effect to any Loans made pursuant to such New Revolving Loan Commitments on the Increased Amount Date or New Term Loan Commitments, as applicable and after giving effect to use of proceeds thereof; (4) the Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter after giving effect to any Loans made pursuant to such New Revolving Loan Commitments on the Increased Amount Date or New Term Loan Commitments, as applicable and after giving effect to use of proceeds thereof, shall be the Leverage Ratio as set forth for such Fiscal Quarter in Section 6.6(b) minus 0.25; (5) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by ~~the Borrower~~ Company, and GSCP, Administrative Agent, ~~and~~ each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(c) and Section 2.20(d); (iv6) ~~the Borrower~~ Company shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; and (v7) ~~the Borrower~~ Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a ~~“Series”~~"SERIES") of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Loan Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Loan Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Loan Commitment and each Loan made thereunder (a ~~“New Revolving Loan”~~"NEW REVOLVING LOAN") shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the Borrower~~ Company (a ~~“New Term Loan”~~"NEW TERM LOAN") in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) Administrative Agent shall notify Lenders promptly upon receipt of Company's notice of each Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender's Revolving Loans, in each case subject to the assignments contemplated by this Section 2.25. (e) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes of~~ the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coTranche C

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Simmons Bedding Co)

Incremental Facilities. ~~(a) The~~ Borrower may by written notice to Administrative Agent elect to request (A) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Loan Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (B) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an ~~aggregate~~ amount ~~not~~ such that Borrower and its Subsidiaries shall be in ~~excess~~ compliance, on a Pro Forma Basis after giving effect to such New Term Loans or New Revolving Loan Commitments and the application of the ~~Maximum~~ proceeds thereof, with a Secured Leverage Ratio of 2.503.00 to 1.00; provided that compliance with such Secured Leverage Ratio shall not be required to the extent (x) such New Revolving Loan Commitments or New Revolving Loans refinance or replace existing Revolving Loan Commitments and Revolving Loans, or (y) such New Term Loans refinance or replace existing Term Loans, or the Cash proceeds of the New Term Loans are applied to prepay then-existing Term Loans in accordance with Section 2.15 (each, a “Refinancing Incremental ~~Facilities Amount in the aggregate and~~ Facility”); provided, further, that any New Revolving Loan Commitment or New Term Loan Commitment shall not be less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent or ~~(y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ such lesser amount that represents all remaining availability under any limit set forth above in this Section 2.25), and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments shall be ~~effective~~effective and (B) the identity of each Lender or other Person that is an Eligible Assignee; provided that, ~~which~~ Issuing Bank shall have consented (such consent not to be ~~a date not less than ten Business Days after the date on which such notice is delivered~~ unreasonably withheld or delayed) to the ~~Administrative Agent. The Borrower may approach~~ allocation of New Revolving Loan Commitments to any ~~Lender~~ Eligible Assignee under clause (ii) of the definition thereof (each, a “New Revolving Loan Lender” or ~~any Person (other than a natural person~~“New Term Loan Lender,” as applicable) to ~~provide all or a~~ whom Borrower proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitments or New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.3(a) shall be satisfied; provided that, solely with respect to the effectiveness of New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any Permitted Acquisition consummated after the Amendment No. 5 Effective Date, the Borrower shall not be required to satisfy the conditions set forth in clause (iii) or (iv) of such Section 3.3(a); (3) except with respect to any Refinancing Incremental Facility, the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such New Revolving Loan Commitments or New Term Loans and the application of the proceeds thereof, with each of the covenants set forth in Section 6.7a maximum Secured Leverage Ratio of 3.00 to 1.0, in each case as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (4) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable New Revolving Loan Lender or New Term Loan Lender, as the case may be, Borrower and Administrative ~~Agent~~Agent (it being understood that the only representations and warranties that shall be certified in the Joinder Agreement with respect to New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any Permitted Acquisition consummated after the Amendment No. 5 Effective Date shall be those representations and warranties set forth in the seventh paragraph of this Section 2.25), and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(d); (iv5) ~~the~~ Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; ~~and~~ (v6) ~~the~~ Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~. Any~~ ; and (7) except with respect to any Refinancing Incremental Facility, in the case of any New Revolving Loan Commitments or New Term ~~Loans made~~ Loan Commitments effected on an Increased Amount Date from and after April 1, 2016, Borrower and its Subsidiaries shall be ~~designated~~in compliance, on a ~~separate series~~ Pro Forma Basis, with a Leverage Ratio as of the Increased Amount Date (~~a “Series”~~assuming in the case of any New Revolving Commitments, that the full amount of all outstanding Revolving Commitments, including New Revolving Commitments, are borrowed on such date), of 5.25 to 1.00; provided, further, that, (x) the effectiveness of New Term Loans ~~for all purposes~~ incurred to finance the Medicis Acquisition or the Bausch & Lomb Acquisition shall not be subject to Borrower’s compliance with clauses (1), (3) or (7) of ~~this Agreement; provided that~~ the foregoing proviso and (Ay) if the ~~use~~ effectiveness of ~~proceeds of such~~ New ~~Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the~~ Term Loans incurred and/or New Revolving Loan ~~Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality~~ Commitments established to finance any Permitted Acquisition consummated after the Amendment No. 10 Effective Date shall ~~apply~~ not be subject to ~~the effectiveness of such new Loan Commitments in lieu of the conditions set forth in~~ compliance with clauses (i1), (ii3) and ~~if applicable,~~ (~~v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii~~7) of the ~~definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b)~~ foregoing proviso. On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date (or in lieu of such assignments, non-pro rata borrowings and prepayments of Revolving Loans may occur) as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ (or such borrowings and prepayments), such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Loan Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Loan Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Loan Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto~~. (c)~~ . On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the~~ Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such ~~Series~~Series (unless the Joinder Agreement with respect to any Series of New Term Loans shall provide for the making of such Series of New Term Loans on a date subsequent to the applicable Increased Amount Date), and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. . Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof (dx) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (y) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the Tranche A New Term Loans ~~and New Term Loan Commitments~~ of any Series shall be, except with respect to pricing, amortization and maturity and except as otherwise set forth herein or in the ~~applicable~~ Joinder ~~Agreement~~Agreement and otherwise reasonably satisfactory to Administrative Agent, identical to ~~one or more Classes~~ the Tranche A Term Loans. The terms and provisions of the ~~existing Initial~~ Tranche B New Term Loans of any Series shall be, except with respect to pricing, amortization and maturity and except as otherwise set forth herein or in the Joinder Agreement and otherwise reasonably satisfactory to Administrative Agent, identical to the Tranche B Term Loans~~; provided that~~ . The terms and provisions of the New Revolving Loans shall be, except with respect to maturity, identical to the Revolving Loans. In any event (i) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the then-remaining weighted average life to maturity of the Tranche B Term Loans (other than with respect to a Tranche A New Term Loan, which shall have a weighted average life to maturity not shorter than the remaining weighted average life to maturity of the Tranche A Term Loans), (ii) the applicable New Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of the Tranche B Term Loans (other than with respect to a Tranche A New Term Loan, which shall have a maturity date not earlier than the ~~2018B Second New~~ Tranche A Term Loan Maturity ~~Date~~ Date), and (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (iiiii) the ~~fees, pricing and the amortization schedule~~ yield applicable to the New Term Loans of each Series shall be determined by ~~the~~ Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however (A) that the ~~weighted average life~~ yield applicable to ~~maturity of all New Term Loans shall be no shorter than~~ the ~~weighted average life to maturity of the 2018B Second~~ Tranche A New Term Loans (after giving effect to all upfront or in similar fees or original issue discount payable with respect to such Tranche A New Term Loans) shall not be greater than the ~~case~~ applicable yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Tranche A Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) plus 0.50% per annum unless the interest rate with respect to the Tranche A Term Loan is increased so as to cause the then applicable yield under this Agreement on the Tranche A Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) to equal the yield then applicable to the Tranche A New Term Loans (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche A New Term Loans) minus 0.50% per annum and (B) that ~~are Refinancing Commitments, no shorter than that of~~ the yield applicable to the Tranche B New Term Loans ~~being refinanced~~(after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche B New 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 Tranche B Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) plus 0.50% per annum unless the interest rate with respect to the Tranche B Term Loan is increased so as to cause the then applicable yield under this Agreement on the Tranche B Term Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder) to equal the yield then applicable to the Tranche B New Term Loans (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Tranche B New Term Loans) minus 0.50% per annum. For purposes of clause (iii) ~~all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution~~ of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (immediately preceding sentence, upfront or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b)~~ similar fees and ~~pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e)~~ original issue discount will be equated to interest rates based upon an assumed four-year average life. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14. (i) The Borrower may at~~ 2.25. Except as expressly set forth in this Section 2.25, New Term Loans incurred and/or New Revolving Loan Commitments established to finance the Medicis Acquisition, the Bausch & Lomb Acquisition or any ~~time~~ Permitted Acquisition after the Amendment No. 5 Effective Date shall be entered into in accordance with this Section 2.25 and ~~from time~~ shall be subject to ~~time request~~ the terms and conditions hereof; provided that ~~all or a portion~~ as of the date of establishment of such New Term Loans incurred to finance the Medicis Acquisition or the Bausch & Lomb Acquisition, Borrower shall not be required to comply with the Secured Leverage Ratio set forth in the first paragraph of ~~any Class~~ this Section 2.25; provided that, as of such date, the representations and warranties set forth in Section 4.1(a) (~~an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal~~ solely with respect to ~~all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”~~due organization) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class4.1(b) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, solely with respect to the ~~Existing Term Loan Class from which~~ Joinder Agreement to be entered into with respect to such ~~Extended~~ New Term Loans ~~were converted~~and/or New Revolving Loan Commitments, ~~in each case~~ as ~~more particularly set forth in paragraph~~ applicable), 4.3 (~~iv) of this Section 2.14(f) below) and (y) (A) the interest margins~~ solely with respect to the ~~Extended~~ Joinder Agreement to be entered into with respect to such New Term Loans ~~may~~ and/or New Revolving Loan Commitments, as applicable), 4.4(a)(ii) (solely with respect to the Joinder Agreement to be ~~higher or lower than the interest margins for the~~ entered into with respect to such New Term Loans ~~of such Existing Term~~ and/or New Revolving Loan ~~Class and/or~~ Commitments, as applicable), 4.6 (~~B) additional fees may be payable~~ solely with respect to the ~~Lenders providing~~ Joinder Agreement to be entered into with respect to such ~~Extended~~ New Term Loans ~~in addition~~ and/or New Revolving Loan Commitments, as applicable), 4.15 (solely with respect to ~~or in lieu~~ regulation under the Investment Company Act of ~~any increased margins contemplated by~~ 1940), 4.16 (solely with respect to the ~~preceding clause~~ Joinder Agreement to be entered into with respect to such New Term Loans and/or New Revolving Loan Commitments, as applicable) and 4.23 (Asolely with respect to the PATRIOT Act), in each case, shall be true and correct in all material respects on and as of such date to the same extent as though made on and as of that date, except to the extent ~~provided~~ such representations and warranties specifically relate to an earlier date, in ~~the applicable Extension Amendment. No Lender~~ which case such representations and warranties shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time been true and ~~from time to time request that~~ correct in all ~~or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time~~ material respects on and as of such ~~request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”~~earlier date; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitmentprovided that, in each case, such materiality qualifier shall not be applicable to ~~the extent provided~~ any representations and warranties that already are qualified or modified by materiality in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)text thereof. (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” ~~and,~~ and together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders constitute an increase in a then existing Class of Term Loans under this Agreement; provided that if the upfront fees payable to any Lender providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) if as part of a Series of existing Term Loans for all purposes of this AgreementLoan Commitments are higher than the ~~use~~ upfront fees paid to the existing Lenders in the primary syndication of ~~proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement~~the Term A Loans and Revolving Commitments, ~~if agreed among~~ the Borrower shall pay the differential (in basis points) to each the existing Lender with respect to its Revolving Commitments and ~~the New Revolving Loan Lenders and/or New~~ Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applyA Loans. (b) On any Increased Amount Date on which New Revolving Credit Commitments (and each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) are effected, subject to the satisfaction of the foregoing terms and conditions, ~~(a)~~ each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit ~~Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment~~ Commitments and ~~each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c)~~ each New Revolving Loan Lender and shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or New Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Term A Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ then existing Term A Loans ~~(or~~ as calculated without giving effect to any prepayments made in ~~the case of New Term Loans that are Refinancing Commitments, no shorter than that of~~ connection with the Term ~~Loans being refinanced) and~~ Loans; (iii) ~~all other terms~~ the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to ~~the~~ any New ~~Term Loans of each Series that differ from the existing~~ Term Loans shall be determined by the Borrower and the Lenders thereunder;; and (iv) to the extent such terms and documentation are not consistent with the then existing Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving~~ Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date), which shall be identical to the Term Loans ~~and~~ of any then existing Class. (e) New Revolving Credit Commitments shall be identical to the ~~2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New~~ Revolving Credit Commitments ~~may provide for~~ of the applicable Class (aother than with respect to upfront fees) ~~a commitment termination date that is later~~ and other than the ~~commitment termination date of the 2020 Revolving Credit Commitments (or~~ Maturity Date and as set forth in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitmentsthis Section 2.14(e). (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments) (a “Revolving Credit Extension Request”~~Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which ~~terms~~ shall not be ~~identical to those applicable~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the applicable Existing Revolving Credit Commitments ~~from which they are to be extended~~ (the “Specified Existing Revolving Credit Commitment”) ~~except~~ unless (x) the Lenders providing existing Revolving Credit Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Revolving Credit Termination Date, in each case, to the extent provided in the applicable Extension Amendment; provided, however, that (w) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) x) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees and premiums may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (zy) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the ~~Revolving Credit Commitment Fee Rate~~ revolving credit commitment fee rate for the Specified Existing Revolving Credit Commitment~~, in each case, to the extent provided in the applicable Extension Amendment~~; provided that, notwithstanding anything to the contrary in this Section ~~2.14(f~~2.14(g) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any ~~Old~~ Original Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Original Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be cosubj

Appears in 1 contract

Sources: Amendment No. 1 (National Vision Holdings, Inc.)

Incremental Facilities. (a) The Borrower ~~may by written notice to Administrative Agent~~ may, elect to request the establishment of one or more ~~(x)~~ additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date~~). Each such notice shall specify the date (each~~) which may be Incurred in Dollars, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative AgentEuros or Pounds Sterling. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Term Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. In each case, such New Term Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with a Limited Condition Transaction, other Permitted Acquisition or Permitted Investment, in which case the standard shall be no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, as applicable; , and subject to Section 1.12, (ii) ~~both before and after giving effect to~~ the ~~making of any Series of~~ New Term ~~Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New~~ Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto[Reserved]. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with the Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any broadly syndicated New Term Loan Incurred pursuant to clause (i) of the definition of Maximum Incremental Facilities Amount that matures earlier than the date that is two years after the Initial Term Loan Maturity Date, only during the period commencing on the Closing Date and ending on the date that is six months after the Closing Date, if the Effective Yield for LIBORSOFR Loans or ABR Loans in ~~the case~~ respect of such New Term Loans ~~that are Refinancing Commitments, no shorter than that~~ exceeds the Effective Yield for LIBORSOFR Loans or ABR Loans in respect of the then existing Initial Term Loans ~~being refinanced) and (iii) all other terms applicable~~ of the same currency by more than 0.50%, the Applicable Margin for LIBORSOFR Loans or ABR Loans in respect of the then existing Initial Term Loans of the same currency shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans of the same currency is equal to the Effective Yield for LIBORSOFR Loans or ABR Loans in respect of the New Term Loans minus 0.50%; provided that, any amendments to the applicable margin on the Initial Term Loans that became effective subsequent to the Restatement Effective Date but prior to the time of ~~each Series that differ from the existing~~ such New Term Loans shall be included in the calculation of the Effective Yield (the terms of this proviso to this clause (iii), the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms~~ Lenders if such financial maintenance covenant is added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness and ~~provisions~~ (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and New Revolving Credit Commitments shall be identical to~~ Lenders if any covenants or other provisions are only applicable after the ~~2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments~~Latest Term Loan Maturity Date); ~~provided~~ provided, further, that ~~New Revolving Credit Commitments may provide for~~ (ax) ~~a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments~~ clauses (~~or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced~~i) and (bii) ~~fees and pricing as agreed between~~ shall not apply to up to an amount equal to the greater of (A) $480,000,000 or (B) 100% of Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower most recently ended on or prior to such date of determination in respect of New Term Loans or Permitted Other Indebtedness (as selected by the Borrower) (the “Maturity Carveout Amount”) and (y) the ~~Lenders providing such~~ MFN Protection shall not apply to (I) up to the greater of (A) $480,000,000 and (B) 100.0% of Consolidated EBITDA for the most recently ended Test Period (as selected by the Borrower) of New ~~Revolving Credit Commitments~~Term Loans and (II) any New Term Loans Incurred in connection with a Permitted Acquisition or other Permitted Investment. (e) [Reserved]. (f) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any ~~time~~ time, and from time to ~~time~~ time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the penultimate sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (iii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)[Reserved]. (~~iii~~ii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request~~ Loans converted into Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term ~~Loans or Extended Revolving Credit Commitments, as applicable~~Loans. In the event that the aggregate amount of Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ Loans of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ requested pursuant to the Extension ~~Request, Term~~ Request or Loans ~~or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments~~ of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans ~~or Extended Revolving Credit Commitments, as applicable,~~ on a pro rata basis based on the amount of ~~Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included~~ Loans in each such Extension Election. (iii) Extended Term Loans shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(g)(iv) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment (x) shall amend the scheduled amortization payments pursuant to Section 2.5 or the applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the Existing Term Loan Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any Repayment Amount payable with respect to any individual Term Loan of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as a result thereof) and (y) may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender contrary in ~~respect of Swingline Loans under~~ this Section ~~2.1(c~~2.14(g) and ~~Letters~~ without limiting the generality or applicability of ~~Credit under Article 3~~Section 13.1 to any Section 2.14 Additional Amendments, ~~except that the applicable~~ any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments are within the ~~Swingline Maturity Date and/or~~ requirements of Section 2.14(g)(i) and do not become effective prior to the ~~Revolving Letter~~ time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans provided for in any Extension Amendment) by such of the Lenders, Credit ~~Maturity Date~~ Parties and other parties (if any) as may be ~~extended~~ required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1. (iv) Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Class is converted to extend the related scheduled maturity date(s) in accordance with clause (i) above (an “Extension Date”), the aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans so converted by such Lender on such date, and the ~~related obligations~~ Extended Term Loans shall be established as a separate Class of Term Loans (together with any other Extended Term Loans so established on such date). (v) The Administrative Agent and the Lenders hereby consent to ~~make Swingline~~ the consummation of the transactions contemplated by this Section 2.14 (including, for the avoidance of doubt, payment of any interest, fees, or premium in respect of any Extended Term Loans ~~and issue Revolving Letters of Credit~~ on such terms as may be coset forth in the relevant Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14.

Appears in 1 contract

Sources: Credit Agreement (Academy Sports & Outdoors, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative ~~Agent~~ Agent, elect to request the establishment of one or more (x1) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”) and/or (y2) additional revolving credit and/or letter of credit facilities or increases in Revolving Credit Commitments, Letter of Credit Commitments or Extended Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), ) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. Persons providing New Loan Commitments shall be reasonably satisfactory to the Borrower and, to the extent its consent would be required for an assignment of Loans or Commitments pursuant to Section 13.6, the Administrative Agent and each Letter of Credit Issuer (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything herein to the contrary, any New Loan Commitments and Loans thereunder held or to be held by Affiliated Lenders, Affiliated Institutional Lenders, Holdings, the Borrower or any Subsidiary shall be governed by the same applicable assignment and participation provisions set forth in Section 13.6 that are applicable to assignments to or purchases by such Persons (as if such Persons had taken such New Loan Commitments and Loans thereunder by assignment or participation). In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default under Section 11.1 or Section 11.5 (except in connection with any acquisition (including any Permitted Acquisition) permitted by this Agreement) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , and subject to Section 1.12, (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments increasing Revolving Credit Commitments or Extended Revolving Credit Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with ~~Revolving Credit~~ Commitments of the applicable Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with ~~Revolving Credit Commitments~~Commitments of such Class, at the principal amount thereof and in the applicable currency(ies), such interests in the ~~Revolving Credit~~ Loans outstanding under such Class of Commitments on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the ~~Revolving Credit~~ Loans of such Class will be held by existing ~~Revolving Credit~~ Lenders of such Class and New Revolving Loan Lenders ratably in accordance with their ~~Revolving Credit~~ Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the ~~Revolving Credit Commitments~~Commitments of such Class, (b) each such New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment or an Extended Revolving Credit Commitment, as applicable, and each Loan made thereunder (a “New Revolving Credit Loan”) shall be deemed, for all purposes, a ~~Revolving Credit~~ Loan ~~and~~ of the applicable Class, (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating ~~thereto~~thereto and (d) the terms of such New Revolving Credit Commitments (other than upfront fees) shall be identical to the existing Class; provided that the fees and Applicable Margin applicable to the existing Class of Commitments may be increased at the option of the Borrower in connection with the establishment of such New Revolving Credit Commitments. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term ~~Loans and~~ Loans, New Term Loan Commitments and New Revolving Credit Commitments (other than New Revolving Credit Commitments of the type described in Section 2.14(b)) of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) (x) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date or the 2023 Term Loan Maturity Date, as applicable, and (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (iiy) the ~~fees, pricing and the amortization schedule~~ applicable ~~to the~~ New ~~Term Loans~~ Revolving Credit Maturity Date of each Series shall be ~~determined by~~ no earlier than the ~~Borrower~~ Revolving Credit Maturity Date and such Series of New Revolving Credit Commitments shall have no amortization or, prior to the ~~applicable new Lenders and shall be set forth in each applicable Joinder Agreement~~Revolving Credit Maturity Date, mandatory commitment reductions; ~~provided that~~ (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ then existing Initial Term ~~Loans~~ Loans; or 2023 Term Loans, as applicable; (~~or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced~~iii) subject to preceding clauses (i) and (~~iii~~ii) ~~all other terms~~ as applicable, (x) the pricing, interest rate margins, discounts, premiums, rate floors, fees, amortization schedule and participation in mandatory prepayments or commitment reductions (which shall not be on a greater than pro rata basis than Revolving Credit Commitments but may be on a less than pro rata basis at the option of the Borrower and the Lenders thereunder) applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and any New Revolving Credit Commitments shall be ~~identical~~ determined by the Borrower and the Lenders thereunder and (y) the pricing, interest rate margins, discounts, premiums, rate floors, fees, amortization schedule and participation in mandatory prepayments (which shall not be on a greater than pro rata basis than the Initial Term Loans or 2023 Term Loans, as applicable, but may be on a less than pro rata basis at the option of the Borrower and the Lenders thereunder) applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided, further that clauses (i) and (ii) shall not apply to (x) any bridge loan, the terms of which provide for an automatic extension of the maturity date to a date that is not earlier than the Initial Term Loan Maturity Date or the 2023 Term Loan Maturity Date, as applicable, or (y) up to $50,000,000 of New Term Loans or Permitted Other Indebtedness as elected by the Borrower (less the amount of any loans under Second Lien New Term Loan Commitments or Permitted Other Indebtedness (under and as defined in the Second Lien Credit Agreement) incurred utilizing the corresponding provision of the Second Lien Credit Agreement); provided, further, that, with respect to any New Term Loan incurred on or prior to the ~~2020 Revolving Credit~~ eighteen month anniversary of the Closing Date, if the Effective Yield for LIBORTerm SOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBORTerm SOFR Loans or ABR Loans in respect of the then existing Initial Term Loans by more than 0.50%, the Applicable Margin for LIBORTerm SOFR Loans or ABR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBORTerm SOFR Loans or ABR Loans in respect of the New Term Loans minus 0.50%; (iv) any New Term Loans, New Term Loan Commitments and ~~the 2020~~ New Revolving Credit Commitments, to the extent secured, shall be secured only by the Collateral securing the Obligations on a pari passu or junior basis and, if on a junior basis, shall be subject to the Closing Date Intercreditor Agreement, and shall only be guaranteed by the Guarantors; provided that (x) any New ~~Revolving Credit~~ Term Loans, New Term Loan Commitments ~~may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (~~or ~~in the case of~~ New Revolving Credit Commitments that are ~~Refinancing Commitments~~unsecured or that are secured on a junior basis to the Obligations shall be documented as a separate facility pursuant to separate documentation from the Credit Documents and (y) any New Term Loans, ~~later than the commitment termination date of the~~ New Term Loan Commitments or New Revolving Credit Commitments ~~being refinanced~~that are secured on a pari passu (without regard to the control of remedies) with the Obligations but that are documented as a separate facility pursuant to separate documentation from the Credit Documents shall be subject to the First Lien Intercreditor Agreement and the Closing Date Intercreditor Agreement; and (bv) ~~fees~~ to the extent such terms and ~~pricing~~ documentation are not consistent with the then existing Initial Term Loans, 2023 Term Loans or then existing Revolving Credit Commitments, as ~~agreed between~~ applicable, (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be (x) added for the benefit of all Lenders, (y) be applicable only after the Latest Term Loan Maturity Date or (z) reasonably satisfactory to the Administrative Agent. With respect to New Revolving Credit Commitments of the type described in this Section 2.14(d) (as opposed to those of the type described in Section 2.14(b)), notwithstanding anything herein to the contrary, (1) the borrowing and repayment (other than in connection with voluntary prepayments or a permanent repayment and termination of commitments or participation in mandatory prepayments or commitment reductions (which shall not be on a greater than pro rata basis than Revolving Credit Commitments but may be on a less than pro rata basis at the option of the Borrower and the Lenders ~~providing~~ thereunder)) of Loans under such New Revolving Credit ~~Commitments~~Commitments shall be made on a pro rata basis with all Revolving Credit Loans, (2) assignments and participations of New Revolving Credit Commitments and Loans thereunder shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6 and (3) such New Revolving Credit Commitments shall be treated identically to all other Original Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Letters of Credit under Section 3, except that the applicable Joinder Agreement may provide that the L/C Facility Maturity Date may be extended and the related obligations to issue Letters of Credit may be continued so long as the applicable Letter of Credit Issuers have consented to such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension). (e) Any New Revolving Credit Commitments increasing Revolving Credit Commitments or Extended Revolving Credit Commitments of any Class shall be subject to the written consent of the Administrative Agent, each Letter of Credit Issuer and the Borrower (such approval in each case not to be unreasonably withheld). (f) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents (including amendments in order for the New Loan Commitments, New Revolving Credit Loans or New Term Loans provided pursuant to such Joinder Agreement to be fungible with the existing Commitments or Loans of such Class, as applicable) as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section 2.14. (i) The Borrower may at any ~~time~~ time, and from time to ~~time~~ time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of ~~the Lenders of the applicable Existing Term Loan Class)~~ the (a ““ Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the maturity date of the relevant Existing Term Loan Class (a “Permitted Other Provision”); provided that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in ~~paragraph~~ clause (iv) of this Section ~~2.14(f) below) and~~ 2.14(g)), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the maturity date of the relevant Existing Term Loan Class. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: First Lien Credit Agreement (HireRight Holdings Corp)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative ~~Agent~~ Agent, elect to ~~request~~ request, (x) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”) and/or (y) ~~increases in~~ prior to the Revolving Credit Maturity Date, an increase to the existing Revolving Credit Commitments (but not the Letter of Credit Commitment or the Swingline Commitment) (any such increase, a “~~New~~ Revolving Credit ~~Commitments~~Increase” and, together with the New Term Loan Commitments, the “New ~~Loan~~ Commitments”), by to effect the incurrence of Indebtedness permitted to be incurred pursuant to Section 10.1(v) in an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $150,000,000 in the aggregate and not less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative ~~Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ Agent, and ~~all such New Loan Commitments obtained on or prior to such date~~integral multiples of $5,000,000 in excess of that amount). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Commitments shall be effective, which shall be a date not less than ~~ten Business Days~~ 10 days after the date on which such notice is delivered to the Administrative Agent~~. The~~ ; provided, that the Borrower ~~may approach any Lender or any Person (other than~~ shall first offer the Lenders under the applicable existing Credit Facility, on a ~~natural person)~~ pro rata basis, the opportunity to provide all ~~or a portion~~ of the New ~~Loan Commitments~~Commitments prior to offering such opportunity to any other Person that is an eligible assignee pursuant to Section 13.6(b); ~~provided~~ provided, further, that any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Commitment. ~~In each case, such~~ Such New ~~Loan~~ Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; ~~provided~~ provided, that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments~~, as applicable~~; (ii) both before and after giving effect to the making of any Series of New Term Loans or ~~New~~ Revolving ~~Loans~~Credit Increase, each of the conditions set forth in Section 7 shall be satisfied; (iii) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Sections 10.9 and 10.10 as of the last day of the most recently ended fiscal quarter after giving effect to such New ~~Loan~~ Commitments and any investment to be consummated in connection therewith; (iv) the New Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (ivv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New ~~Loan~~ Commitments, as applicable; and (vvi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated as a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower~~ Agreement and the ~~New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to~~ other Credit Documents. (b) Upon each increase in the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to ~~clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”)~~this Section, the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a ~~New~~ Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Increase (~~each,~~ each a “~~New~~ Revolving ~~Loan~~ Credit Increase Lender”) in respect of such increase, and each ~~of the New Revolving Loan Lenders shall purchase from each of the Lenders with~~ such Revolving Credit ~~Commitments~~Increase Lender will automatically and without further act be deemed to have assumed, ~~at the principal amount thereof~~ a portion of such Lender’s participations hereunder in outstanding Letters of Credit and ~~in the applicable currency(ies),~~ Swingline Loans such ~~interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order~~ that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Revolving Credit Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such ~~assignments and purchases~~Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans ~~will be held~~ being prepaid and any costs incurred by ~~existing Revolving Credit Lenders and New Revolving Loan Lenders ratably~~ any Lender in accordance with ~~their Revolving Credit Commitments after giving effect~~ Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the ~~addition of such New Revolving Credit Commitments~~ transactions effected pursuant to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating theretoimmediately preceding sentence. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a ~~Loan~~ loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to ~~the~~ its New Term Loan Commitment of such Series and the New Term Loans of such Series made by such Lender pursuant thereto. (d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Series of New Term Loan Commitments and New Term Loan Lenders of such Series and the Revolving Credit Increase and Revolving Credit Increase Lenders and (ii) in the case of each notice to any Lender with Revolving Credit Exposure, the respective interests in such Lender’s Revolving Credit Exposure subject to the assignments contemplated by clause (b) of this Section 2.14. (e) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes of~~ the ~~existing Initial~~ Tranche D Term Loans; ~~provided~~ provided, however, that (i) the New Term Loan Maturity Date for any Series shall be determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in the applicable Joinder Agreement; provided, that the applicable New Term Loan Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ final maturity of the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New~~ Tranche D Term Loans and ~~the existing Term Loans shall be identical,~~ (ii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable ~~new~~ New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (LPL Investment Holdings Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to Administrative ~~Agent~~ Agent, elect to request the establishment of one or more ~~(x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y)~~ increases in Revolving Credit Commitments of any Class (the “New Revolving Credit ~~Commitments” and, together with the New Term Loan Commitments, the “New Loan~~ Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New ~~Loan~~ Revolving Credit Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New ~~Loan~~ Revolving Credit Commitments; provided that the Administrative Agent shall be offered a right to provide a proposal to provide such requested New Revolving Credit Commitments (which may be provided by an Affiliate of the Administrative Agent), which the Borrower, in its sole discretion, may accept or reject; provided that any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Credit Commitment. In each case, such New ~~Loan~~ Revolving Credit Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Revolving Credit Commitments, as ~~applicable;~~ applicable (or, in connection with a Limited Condition Transaction, at the time of such Increased Amount Date or, if earlier, at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 11.1 or Section 11.5) and (ii) ~~both before and after giving effect to~~ the ~~making of any Series of New Term Loans or~~ New Revolving ~~Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan~~ Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to New Revolving Credit Commitments, (i) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such New Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto[Reserved]. (d) [Reserved]. (e) The terms and provisions of ~~the New Term Loans and New Term Loan Commitments of~~ any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments and the related New Revolving Credit Loans shall be identical to the ~~2020~~ Class of Commitments and related Revolving Loans subject to increase by such New Revolving Credit ~~Loans~~ Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that may be agreed to among the Borrower and the ~~2020 Revolving Credit Commitments; provided that~~ lender(s) providing and/or arranging such New Revolving Credit Commitments may ~~provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or~~ be paid in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing connection with such New Revolving Credit Commitments. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the ~~Term Loans~~ Revolving Credit Commitments of any ~~Class (an “Existing Term Loan~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g)(i). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments~~Commitments which such request shall be offered equally to all such Lenders) (a an “~~Revolving Credit~~ Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which ~~terms~~ shall be ~~identical~~ on terms to ~~those applicable to~~ be agreed between the ~~Existing~~ Borrower and the Lender providing Extended Revolving Credit ~~Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except~~ Commitments; provided, however, that (x) ~~all or any of~~ the scheduled final maturity ~~dates of such Extended Revolving Credit Commitments may~~ date shall be ~~delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments~~extended, and (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit ~~Commitments~~ Commitments”) and/or (B) additional ~~fees~~ fees, premiums or applicable high-yield discount obligation payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment), in each case, to the extent provided in the applicable Extension Amendment~~; provided that, notwithstanding~~ . Notwithstanding anything to the contrary in this Section ~~2.14(f)~~ 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any ~~Old~~ Original Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Original Revolving Credit Commitments and (2) ~~assignments and participations of~~ no Extended Revolving Credit Commitments may be optionally permanently prepaid and ~~Extended Revolving Credit Loans shall be governed by~~ terminated prior to the ~~same assignment and participation provisions applicable to~~ date on which the Specified Existing Revolving Credit Commitments from which they were converted is permanently repaid in full and terminated, except in accordance with the ~~Revolving Credit Loans related to such Commitments set forth in~~ last sentence of Section ~~13.6~~5.1. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (~~iii~~ii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its ~~Term Loans,~~ Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended ~~Term Loans or Extended~~ Revolving Credit ~~Commitments, as applicable,~~ Commitments shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its ~~Term Loans,~~ Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended ~~Term Loans or Extended~~ Revolving Credit Commitments~~, as applicable~~. In the event that the aggregate amount of ~~Term Loans,~~ Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended ~~Term Loans or Extended~~ Revolving Credit ~~Commitments, as applicable,~~ Commitments requested pursuant to the Extension Request, ~~Term Loans or~~ Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended ~~Term Loans or Extended~~ Revolving Credit ~~Commitments, as applicable,~~ Commitments on a pro rata basis based on the amount of ~~Term Loans,~~ Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment ~~(other than a New Revolving Credit Commitment)~~ into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other ~~Old~~ Original Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of ~~Swingline Loans under Section 2.1(c) and~~ Letters of Credit under ~~Article~~ Section 3, except that the applicable Extension Amendment may provide that the ~~Swingline Maturity Date and/or the Revolving Letter of Credit~~ L/C Facility Maturity Date may be extended and the related obligations to ~~make Swingline Loans and~~ issue ~~Revolving~~ Letters of Credit may be cocontinued so long as the Letter of Credit Issuers, as applicable, have consented to such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension). (iii) Extended Revolving Credit Commitments shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(g)(iii) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Revolving Credit Commitments established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Revolving Credit Commitments in an aggregate principal amount that is less than $5,000,000. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or applicability of Section 13.1 to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of Section 2.14(g)(i) and do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of Extended Revolving Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Revolving Credit Commitments provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1. (iv) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Class is converted to extend the related scheduled maturity date(s) in accordance with clause (i) above (an “Extension Date”), the aggregate principal amount of such Specified Existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Revolving Credit Commitments so converted by such Lender on such date, and such Extended Revolving Credit Commitments shall be established as a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date) and (B) if, on any Extension Date, any Loans of any Extending Lender are outstanding under the applicable Specified Existing Revolving Credit Commitments, such Loans (and any related participations) shall be deemed to be allocated as Extended Revolving Credit Loans (and related participations) and Existing Revolving Credit Loans (and related participations) in the same proportion as such Extending Lender’s Specified Existing Revolving Credit Commitments to Extended Revolving Credit Commitments. (v) The Administrative Agent and the Lenders hereby consent to the consummation of the transactions contemplated by this Section 2.14 (including, for the avoidance of doubt, payment of any interest, fees, or premium in respect of any Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14.

Appears in 1 contract

Sources: Credit Agreement (OneStream, Inc.)

Incremental Facilities. (a) ~~The~~ Parent Borrower may by written notice to ~~Administrative Agent~~ the Agents elect to ~~request~~ request, prior to the ~~establishment of one or more~~ Revolving Commitment Termination Date, an increase to the applicable existing Revolving Commitments (xwhich may be allocated to the Tranche A Revolving Commitments and/or the Tranche B Revolving Commitments as determined by the Parent Borrower) ~~additional tranches of term~~ (any such increase, the “New Revolving Commitments” and the loans ~~(the commitments~~ made pursuant thereto, the “New ~~Term Loan Commitments”) and/or (y) increases in~~ Revolving ~~Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments~~Loans”), by an ~~aggregate~~ amount (such amount not ~~in excess of the Maximum Incremental Facilities Amount in the aggregate and not~~ to be less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the US Administrative ~~Agent or~~ Agent) and integral multiples of $1,000,000 in excess of that amount) not in excess of the remainder of (yA) ~~shall constitute~~ $150,000,000 minus (B) the ~~difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior~~ aggregate principal amount of Indebtedness incurred pursuant to ~~such date~~Section 6.1(l). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New ~~Loan~~ Revolving Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the ~~Administrative Agent. The Borrower may approach any~~ Agents; and (B) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Lender”) to ~~provide all or a~~ whom the applicable Borrower proposes any portion of such New Revolving Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New ~~Loan~~ Revolving Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Commitment. ~~In each case, such~~ Such New ~~Loan~~ Revolving Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Revolving Commitments; (2) the other terms of the New Revolving Commitments (including the Applicable Margin) shall be documented solely as an increase to the Revolving Commitments, ~~as applicable~~with identical terms; (~~ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~3) the New ~~Loan~~ Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower and the US Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.19(c); (iv4) the applicable Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.17(d) in connection with the New ~~Loan~~ Revolving Commitments~~, as applicable~~; and (v5) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the US Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a~~ of the New ~~Revolving Credit Commitment (each~~Lenders, ~~a “New Revolving Loan Lender”)~~ and each of the New ~~Revolving Loan~~ Lenders shall purchase from each of the ~~Lenders with Revolving Credit Commitments~~Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing ~~Revolving Credit~~ Lenders and New ~~Revolving Loan~~ Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Commitments to the Revolving ~~Credit Commitments~~Commitment, (bii) each New Revolving ~~Credit~~ Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each ~~Loan made thereunder (a “~~New Revolving ~~Loan”)~~ Loan shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (ciii) each New ~~Revolving Loan~~ Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Commitment and all matters relating thereto. (c) ~~On any~~ The US Administrative Agent shall notify Lenders promptly upon receipt of the applicable Borrower’s notice of each Increased Amount Date ~~on which any~~ and in respect thereof the New ~~Term Loan~~ Revolving Commitments ~~of any Series are effective~~and the New Lenders and the respective interests in such Lender’s Revolving Loans, in each case subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant theretoassignments contemplated by this Section. (d) ~~The~~ At any time on or prior to the Revolving Commitment Termination Date, the Parent Borrower may request an extension of the Revolving Commitments (a “Proposed Extension”) by notice to the US Administrative Agent, the Lenders, the Issuing Banks and the Swing Line Lenders. Each such notice shall specify the proposed extended revolving commitment termination date (the “Extended Termination Date”) and any other terms or conditions with respect to the Proposed Extension. Neither the US Administrative Agent nor any Lender, Issuing Bank or Swing Line Lender shall be obligated in any capacity to provide any such extension of its Revolving Commitments pursuant to any Proposed Extension or enter into any negotiations with respect to any Proposed Extension. Each Lender, Issuing Bank and Swing Line Lender, as applicable, choosing to extend its Revolving Commitment pursuant to a Proposed Extension (each, an “Extending Lender”) and the applicable Borrowers may prepare appropriate documentation necessary to reflect the terms and ~~provisions~~ conditions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term LoansProposed Extension; provided that (i) no amendments or modifications to any Loan Documents will be permitted prior to the ~~applicable New Term Loan Maturity~~ Revolving Commitment Termination Date unless the US Administrative Agent, in its sole discretion, consents to any such amendments or modifications (subject in each case to the requirements of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Section 10.5); (ii) amendments or modifications to any Loan document shall be permitted with the ~~fees, pricing~~ consent of the US Administrative Agent and the ~~amortization schedule applicable~~ Extending Lenders (but solely to the ~~New Term Loans of each Series shall be determined by~~ extent such amendments and modifications apply only following the ~~Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement~~Revolving Commitment Termination Date); provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) ~~all other terms applicable to~~ unless the ~~New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the~~ US Administrative Agent (has agreed in its sole discretion to act as ~~evidenced by its execution of~~ the ~~applicable Joinder Agreement). The terms and provisions of~~ US Administrative Agent for the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of Extending Lenders following the Revolving ~~Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may~~Commitment Termination Date, ~~without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the~~ a successor US Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which Agent shall have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated appointed by the ~~preceding clause (A), in each case,~~ Extending Lenders to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of act as administrative agent commencing on the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)Termination Date. (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Revolving Credit and Guaranty Agreement (CommScope Holding Company, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative Agent ~~elect~~ and each Lender (with a copy to ~~request~~ the ~~establishment~~ Collateral Agent), request, prior to the last day of ~~one or more~~ the Revolving Period, an increase to the existing Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term Loan~~ Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify (i) the amount of the New Commitment, (ii) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Commitments shall be ~~effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to~~ effective and approved in writing by the Administrative ~~Agent. The Borrower may approach any~~ Agent and (iii) the identity of each Lender or ~~any~~ other Person (~~other than a natural person~~each, an “Increasing Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of such New Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations (if then known); provided that any New Commitment shall first be offered to each existing Lender ~~offered or approached~~ (pro rata) for a period of seven (7) Business Days prior to ~~provide all or a portion of the~~ offering to any Person that is not an existing Lender. Such New ~~Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan~~ Commitments shall become effective as of ~~the applicable~~ such Increased Amount ~~Date~~Date if the Administrative Agent, the Required Lenders and each Lender whose Commitment is being increased thereby has consented thereto in their respective sole discretion and subject to any internal approvals; provided that (iA) no ~~Default or~~ Unmatured Event of Default, Event of Default or Borrowing Base Deficiency shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments~~, as applicable~~; (~~ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~B) the New ~~Loan~~ Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender (if applicable), or one or more Joinder ~~Agreements~~ Supplements for any new Lender executed and delivered by the ~~Borrower~~ Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the ~~Register and shall be subject to the requirements set forth in Section 5.4(d)~~Register; (ivC) the Borrower shall ~~make~~ pay any ~~payments~~ applicable required ~~pursuant to Section 2.11~~ fees in connection with the New ~~Loan~~ Commitments~~, as applicable~~; ~~and~~ (vD) the Borrower shall deliver or cause to be delivered any legal opinions or other customary closing documents (substantially consistent with the documents set forth in Section 3.01) reasonably requested by Administrative Agent or an Increasing Lender in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series~~ ; and (~~a “Series”~~E) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of ~~such new Loan~~ any allocation of New Commitments ~~in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used~~ to ~~replace or refinance Term Loans or Revolving Credit Commitments pursuant~~ a non-Lender shall be subject to ~~clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses~~ (i) the prior written consent of the Administrative Agent and (ii) ~~above shall not apply~~the Collateral Agent’s receipt of all documentation necessary for purposes of compliance with the applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Money Laundering Laws. (b) On any Increased Amount Date on which New ~~Revolving Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the existing Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each~~of the Increasing Lenders, ~~a “New Revolving Loan Lender”)~~ and each of the ~~New Revolving Loan~~ Increasing Lenders shall purchase from each of the ~~Lenders with Revolving Credit Commitments~~existing Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the ~~Revolving Credit Loans outstanding~~ Advances Outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the Revolving Credit Loans~~ such Advances will be held by existing ~~Revolving Credit~~ Lenders and ~~New Revolving Loan~~ Increasing Lenders ratably in accordance with their ~~Revolving Credit~~ Commitments after giving effect to the addition of such New ~~Revolving Credit~~ Commitments to the ~~Revolving Credit~~ Commitments, (bii) each New ~~Revolving Credit~~ Commitment shall be ~~deemed~~ deemed, for all ~~purposes~~ purposes, a ~~Revolving Credit~~ Commitment and each ~~Loan~~ Advance made thereunder (a “New ~~Revolving Loan~~Advance”) shall be deemed, for all purposes, ~~a Revolving Credit Loan~~ an Advance and (ciii) each ~~New Revolving Loan~~ new Lender shall become a Lender with respect to the ~~New Revolving Credit Commitment~~ Commitments and all matters relating thereto. (c) ~~On any~~ The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date ~~on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms~~ and ~~conditions,~~ in respect thereof (i) ~~each Lender with a~~ the New ~~Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to~~ Commitments and the ~~Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series,~~ Increasing Lenders and (ii) in the case of each ~~New Term Loan Lender of~~ notice to any ~~Series shall become a Lender hereunder with respect~~ Lender, the respective interests in such ▇▇▇▇▇▇’s Advances, in each case subject to the ~~New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto~~assignments contemplated by this Section 2.20. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments Advances shall be identical to the ~~2020 Revolving Credit Loans~~ Advances. Each Assignment and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (Acceptance or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments~~each Joinder Supplement, ~~later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing~~ as ~~agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement~~ applicable, may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Transaction Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, and consented to by the Borrower (such consent not to be unreasonably withheld), to effect the ~~provision~~ provisions of this Section ~~2.14. (i)~~ 2.20. The ~~Borrower may at any time and from time to time request that all or a portion of the Term Loans~~ effectiveness of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed conditioned upon any such amendment being entered into by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)parties hereto. (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)

Incremental Facilities. ~~(a) The Borrower~~ Company may by written notice to Administrative Agent elect to request the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $20,000,000, which amount shall be in ~~the~~ an aggregate minimum amount of $5,000,000 and ~~not less than~~ integral multiples of $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)100,000 in excess of that amount. Each such notice shall specify the date (~~each,~~ an “Increased Amount Date”) on which ~~the Borrower~~ Company proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 15 Business Days after the date on which such notice is delivered to ~~the~~ Administrative Agent. ~~The Borrower may approach any Lender~~ Upon receipt of such notice Administrative Agent shall arrange a syndicate of lenders to provide the new Term Loans, which syndicate shall consist of existing Lenders or any ~~Person~~ other Persons that are Eligible Assignees and reasonably acceptable to Administrative Agent (~~other than~~ each, a ~~natural person~~“New Term Loan Lender”) to ~~provide all or a~~ whom Company proposes any portion of such New Term Loan Commitments be allocated and the amounts of such allocations; provided that Company shall first offer each Lender that then holds Term Loans be allocated its Pro Rata Share of the New Term Loan Commitments~~; provided that~~ , but any Lender ~~offered or~~ approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. ~~In each case, such~~ Such New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided ~~that~~ that, except as otherwise agreed in writing by the New Term Loan Lenders in connection with any Limited Condition Acquisition, (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments~~, as applicable~~; (ii) ~~both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans,~~ each of the conditions set forth in Section 7 3.02 shall be satisfied; (iii) Company and its Subsidiaries shall demonstrate that, after giving effect to such New Term Loan Commitments and the funding of such New Term Loans, the Leverage Ratio is less than the then in effect Leverage Multiple (provided, that, the proceeds of any New Term Loans shall not be included in the amount of Consolidated Net Cash for purposes of calculating the Leverage Ratio pursuant to this clause (iii)); (iv) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements or other documentation reasonably acceptable to Administrative Agent, executed and delivered by ~~the Borrower~~ Company, Administrative Agent and ~~Administrative Agent~~each New Term Loan Lender, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.19(c); (ivv) ~~the Borrower~~ Company shall make any payments required pursuant to Section ~~2.11~~ 2.17(c) in connection with the New Term Loan Commitments~~, as applicable~~; and (vvi) ~~the Borrower~~ Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate ~~series (a “Series”) of New Term Loans~~ Class for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) . On any Increased Amount Date on which any New Term Loan Commitments of any ~~Series~~ tranche are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”) of any Series~~ Lender shall make a Loan to ~~the Borrower~~ Company (a “New Term Loan”) in an amount equal to its New Term Loan ~~Commitment of such Series~~Commitment, and (ii) each New Term Loan Lender ~~of any Series~~ shall become a Lender hereunder with respect to the New Term Loan Commitment ~~of such Series~~ and the New Term Loans ~~of such Series~~ made pursuant thereto~~. (d)~~ . Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of each Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders, as applicable. The terms and provisions of the New Term Loans and New Term Loan Commitments ~~of any Series~~ shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes~~ the Term Loans. In any event (i) the weighted average life to maturity of all New Term Loans of any tranche shall be no shorter than the then remaining weighted average life to maturity of the ~~existing Initial Term~~ Revolving Loans and the Terms Loans~~; provided that~~ , (iii) the applicable New Term Loan Maturity Date ~~of each Series~~ shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case~~ latest of ~~New Term Loans that are Refinancing Commitments, no earlier than that~~ final maturity of the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term~~ Revolving Loans and the ~~existing~~ Term ~~Loans shall be identical~~Loans, and (iiiii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New Term Loans ~~of each Series~~ shall be determined by ~~the Borrower~~ Company and the applicable ~~new~~ New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided however that if the ~~weighted average life to maturity~~ interest rates, fees and/or other forms of ~~all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans~~ consideration that are ~~Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms~~ to be applicable to the New Term Loans are, in the aggregate, more than 50 basis points higher than the interest rates, fees and/or other consideration applicable to the existing Term Loans immediately prior to the proposed date of ~~each Series that differ from~~ increase (such excess above 50 basis points, the “Excess”), then the interest rates, fees and other consideration applicable to the existing Term Loans shall ~~be reasonably acceptable~~ immediately prior to the ~~Administrative Agent (as evidenced~~ proposed Increased Amount Date be automatically increased by ~~its execution~~ an amount that is equal to the amount of the Excess, effective on the applicable ~~Joinder Agreement)~~Increased Amount Date. The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provision of this Section ~~2.14.~~2.23. Notwithstanding the foregoing provisions of this Section 2.23 or any other provision of any Credit Document, if the proceeds of any New Term Loan are intended to be applied to finance a Limited Condition Acquisition, to the extent the Company has obtained on or prior to the signing of definitive acquisition agreements for such Limited Condition Acquisition binding commitments of the applicable New Term Loan Lenders to fund such New Term Loans on the basis of clause (i) and clause (ii) below, then: (i) ~~The Borrower may at any time~~ the conditions precedent to the funding of such New Term Loans for a Limited Condition Acquisition shall be limited to the following: (A) to the extent the definitive acquisition agreements for such Limited Condition Acquisition are executed and ~~from time~~ delivered prior to ~~time request that all or a portion~~ the funding of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended applicable New Term Loans, no Default or Event of Default shall have occurred and be continuing as of the ~~Borrower~~ date such definitive acquisition agreements are executed and delivered, (B) no Specified Event of Default shall ~~provide a notice to~~ have occurred and be continuing on the ~~Administrative Agent (who shall provide a copy~~ date of closing of such ~~notice to each of~~ Limited Condition Acquisition and the ~~Lenders~~ funding of the applicable ~~Existing~~ New Term ~~Loan Class~~Loans, and (C) (the only representations and warranties the accuracy of which shall be a ~~“Term Loan Extension Request”) setting forth~~ condition to funding such advance shall be the ~~proposed terms of~~ Specified Representations and the ~~Extended Term Loans to be established~~Specified Acquisition Agreement Representations, which shall be ~~identical to~~ true and correct in all material respects (or, in the ~~Term Loans~~ case of any such representation that is qualified by materiality, in all respects) as of the ~~Existing Term Loan Class from which they are to be converted except~~ Increased Amount Date; and (xii) ~~the scheduled final maturity date shall be extended and all or any~~ for purposes of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (determining compliance on a Pro Forma Basis with any ~~such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected~~ financial covenants in Section ~~2.5~~ 6.08, or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) whether any Specified Event of ~~this Section 2.14(f) below)~~ Default has occurred and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A)is continuing, in each case, solely for the purpose of satisfying the conditions precedent set forth in of clause (i) above, the date of determination of the relevant financial covenants may, at Company’s option, be the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into and, subject to the ~~extent provided~~ proviso contained in this clause (ii), calculated as if the ~~applicable Extension Amendment. No Lender shall have any obligation~~ Limited Condition Acquisition (and the other transactions to ~~agree~~ be entered into in connection therewith (including the incurrence of Indebtedness and the use of proceeds thereof)) were consummated on such date; provided, that, if Company has made such an election to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing such determination occur at the time of ~~such request~~ entry into the applicable definitive acquisition agreements (~~each, an “Existing Revolving Credit Commitment”~~ and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend not at the ~~termination date thereof and the scheduled maturity date(s)~~ time of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each consummation of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be establishedLimited Condition Acquisition), which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the ~~interest margins with respect~~ New Term Loans to be incurred shall be deemed to be incurred and outstanding thereafter for purposes of calculating, on a Pro Forma Basis, any applicable financial ratios or baskets in this Agreement (even if unrelated to such Limited Condition Acquisition) as of any date on or following such election and prior to the ~~Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or~~ earlier of (Bx) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which ~~Lenders under~~ such Limited Condition Acquisition is consummated or (y) the date on which the definitive agreement for such Limited Condition Acquisition is terminated without actually consummating the Limited Condition Acquisition, and (B) such Limited Condition Acquisition must close within sixty (60) days of the signing of the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to definitive acquisition agreements for such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended Limited Condition Acquisition and the ~~related obligations~~ Company’s election to ~~make Swingline Loans and issue Revolving Letters of Credit may be co~~calculate the financial covenants on such date.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Madison Square Garden Co)

Incremental Facilities. (a) The ~~Borrower~~ Company may by written notice to the Administrative Agent elect to request prior to the Maturity Date, the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term ~~Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan~~ Commitments”), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ US$100,000,000 in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)aggregate. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the ~~Borrower~~ Company proposes that the New ~~Loan Commitments~~ Term Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ 3 Business Days (or such shorter period agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (B) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Term Lender”) to ~~provide all or a~~ whom the Company proposes any portion of such New Term Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New ~~Loan~~ Term Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Term Commitment. ~~In each case, such~~ Such New ~~Loan~~ Term Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Term Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of any ~~Series of~~ New Term ~~Loans or New Revolving~~ Loans, the representations and warranties contained in Article V shall be true and correct as of the Increased Amount Date, as though made on and as of such date; (3) the Company shall be in pro forma compliance with each of the ~~conditions~~ covenants set forth in Section ~~7 shall be satisfied~~7.09 and 7.10 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Term Commitments; (~~iii~~4) the Company shall reimburse the Administrative Bank for all reasonable costs and expenses (including Attorney Costs) incurred in connection with the New Term Commitments; and (5) the New ~~Loan~~ Term Commitments shall be effected pursuant to one or more joinder agreements in form and substance satisfactory to the Administrative Agent (the “Joinder ~~Agreements~~ Agreement”) executed and delivered by the ~~Borrower~~ Company, the New Term Lender and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term ~~Loan~~ Commitments ~~of any Series~~ are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term ~~Loan Commitment (each, a “New Term Loan Lender”)~~ Lender of ~~any Series~~ shall make a ~~Loan~~ loan to the ~~Borrower~~ Company (a “New Term Loan”) in an amount equal to its New Term ~~Loan Commitment of such Series~~Commitment, and (ii) each New Term ~~Loan~~ Lender ~~of any Series~~ shall become a Lender hereunder with respect to the New Term ~~Loan~~ Commitment ~~of such Series~~ and the New Term Loans ~~of such Series~~ made pursuant thereto. (dc) The terms and provisions of the New Term Loans and New Term ~~Loan~~ Commitments ~~of any Series~~ shall ~~be, except as otherwise set forth herein or in the applicable Joinder Agreement,~~ be identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term ~~Loans shall be identical~~Loans, ~~(ii)~~ it being understood that the ~~fees, pricing and the amortization schedule~~ Weighted Average Yield applicable to the New Term Loans ~~of each Series~~ shall not be ~~determined by the Borrower and~~ greater than the applicable ~~new Lenders and shall be set forth in each applicable Joinder Agreement; provided that~~ Weighted Average Yield payable pursuant to the ~~weighted average life to maturity~~ terms of ~~all New Term Loans shall be no shorter than~~ this Agreement as amended through the ~~weighted average life to maturity~~ date of ~~the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of~~ such calculation with respect the Term Loans ~~being refinanced) and (iii) all other terms~~ unless the interest rate with respect to the Term Loans is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Term Loans to equal the Weighted Average Yield then applicable to the New Term ~~Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement)~~Loans. The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the opinion of ~~the~~ Administrative ~~Agent,~~ Agent to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Loan Agreement (Gruma Sab De Cv)

Incremental Facilities. (ai) The Borrower may by written notice to the Administrative Agent elect to request prior to the ~~establishment of~~ Revolving Commitment Termination Date, increases to the existing Revolving Loan Commitments (any such increase, the “New Revolving Loan Commitments”) and/or enter into one or more ~~(x) additional~~ tranches of term loans (~~the commitments thereto~~each, ~~the~~ an “~~New~~ Incremental Term ~~Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments~~Loan”), ~~by an aggregate amount not~~ in ~~excess~~ each case in minimum increments of ~~the Maximum Incremental Facilities Amount~~ $10,000,000 (or, in ~~the aggregate and not less than $100,000,000 individually (or~~ each case, such lesser amount ~~as (x) may~~ which shall be approved by the Administrative ~~Agent or~~ Agent), so long as, after giving effect thereto the aggregate amount of all such New Revolving Loan Commitments and Incremental Term Loans do not exceed (1) the greater of (x) $250,000,000 and (y) ~~shall constitute~~ 18.5% of Consolidated Total Assets as of the ~~difference between~~ last day of the ~~Maximum Incremental Facilities Amount~~ most recently ended Test Period and ~~all~~ calculated on a Pro Forma Basis plus (2) an unlimited amount, so long as after giving effect to such New Revolving Loan Commitments ~~obtained~~ or Incremental Term Loans and the application of the proceeds thereof on a Pro Forma Basis (without netting the cash proceeds of any such Incremental Term Loans incurred on such date and, in the case of any New Revolving Loan Commitments, assuming full utilization of such New Revolving Loan Commitments (whether or ~~prior to such date~~not fully drawn)), the Total Net Leverage Ratio does not exceed 4.50:1.00 as of the last day of the most recently ended Test Period and calculated on a Pro Forma Basis. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Revolving Loan Commitments or the Incremental Term Loan shall be effective, which shall be a date not less than ~~ten~~ five (5) Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower~~ Agent (or such shorter period as the Administrative Agent may ~~approach any~~ agree) and (ii) the identity of each Lender or other Person that is an eligible assignee under Section 11.04(b) (which, if not a Lender, an Approved Fund or an Affiliate of a Lender), shall be reasonably satisfactory to the Administrative Agent (in each case, not to be unreasonably withheld or delayed) (each, a “New Lender” and any ~~Person (other than~~ such New Lender providing a ~~natural person~~New Revolving Loan Commitment, a “New Revolving Loan Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of such New Revolving Loan Commitments or Incremental Term Loans be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any ~~Lender offered or~~ Person approached to provide all or a portion of ~~the~~ any New Revolving Loan Commitments or Incremental Term Loans may elect or ~~decline,~~ decline to participate in its sole discretion~~, to provide a~~ . Such New ~~Loan Commitment. In each case, such New~~ Revolving Loan Commitments or Incremental Term Loans shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (~~i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii~~1) both before and after giving effect to ~~the making of any Series of New Term Loans or~~ such New Revolving Loan Commitments or Incremental Term Loans, as applicable, each of the conditions set forth in Section 7 4.02 (with the exception of Section 4.02(a)) shall be satisfied; , including, for the avoidance of doubt, the making of the representations and warranties contained in Section 3.04(b) hereof (~~iii)~~ provided that, in the case of any New Revolving Loan Commitments ~~shall~~ or Incremental Term Loan the proceeds of which are to be ~~effected pursuant~~ used primarily to ~~one~~ consummate a Limited Conditions Acquisition substantially concurrently with the effectiveness of such New Revolving Loan Commitments or ~~more Joinder Agreements executed and delivered~~ Incremental Term Loan, to the extent agreed to by the Borrower and ~~Administrative Agent~~the Lenders providing such New Revolving Loan Commitments or Incremental Term Loan, (x) the only representations and ~~each~~ warranties the accuracy of which shall be ~~recorded in~~ a condition to the ~~Register and~~ effectiveness of such New Revolving Loan Commitments or Incremental Term Loan shall be ~~subject to~~ the ~~requirements~~ Specified Representations and the Specified Acquisition Agreement Representations, and (y) the condition set forth in Section ~~5.4(d~~4.02(c) shall be tested on the date the acquisition agreement with respect to such Limited Conditions Acquisition is signed (provided that, on the date such New Revolving Loan Commitments or Incremental Term Loan are effective, no Event of Default under Section 9.01(a), (b), (g), (h) or (i) shall exist or result therefrom)); (iv2) any New Revolving Loan Commitments and New Revolving Loans made pursuant hereto shall be on the ~~Borrower shall make any payments required~~ same terms as the existing Revolving Commitments and Loans made pursuant thereto (including, for the avoidance of doubt, with respect to maturity date and pricing), as set forth in and pursuant to ~~Section 2.11~~ the Loan Documents, with such additional amendments |US-DOCS\140731213.5|| thereto as may be necessary or appropriate in ~~connection with~~ the judgment of the Administrative Agent to effect such New Revolving Loan Commitments, ~~as applicable;~~ and (v3) as a condition to the effectiveness of such New Revolving Loan Commitments or Incremental Term Loan, the Borrower shall deliver or cause to be delivered any customary legal opinions or other ~~documents~~ certificates reasonably requested by the Administrative Agent in connection with any such transaction. ~~Any~~ Each joinder agreement with a New Lender not previously a Lender shall be subject to the consent (not to be unreasonably withheld or delayed) of the Issuing Banks. (ii) The Incremental Term Loans ~~made on an Increased Amount Date~~ shall be ~~designated~~secured on a pari passu basis with the Obligations, shall have a ~~separate series~~ maturity date no earlier than the date that is ninety-one (~~a “Series”~~91) days after the Latest Maturity Date, shall not be guaranteed by any person other than an Obligor and shall not be secured by any Lien on any asset other than an asset constituting Collateral. To the extent the terms of ~~New~~ the Incremental Term Loans ~~for all purposes~~ differ from the terms applicable to Loans and Revolving Commitments hereunder, the terms and conditions of ~~this Agreement; provided that~~ such Incremental Term Loans (excluding pricing, interest rate margins, rate floors, discounts, premiums, fees, and prepayment or redemption terms and provisions which shall be determined by the Borrower) either, at the option of the Borrower, (A) if shall be reasonably satisfactory to the ~~use of proceeds of such New Loan Commitments is an acquisition~~ Administrative Agent (except for covenants or ~~investment permitted under this Agreement, if agreed among~~ other provisions applicable only to periods after the Latest Maturity Date) or (B) shall not be materially more restrictive to the Borrower and its Subsidiaries (when taken as a whole) than the ~~New Revolving Loan Lenders and/or New~~ terms and conditions of this Agreement (when taken as a whole) (except for covenants or other provisions applicable only to periods after the Latest Maturity Date) (it being understood that (1) to the extent that any financial maintenance covenant is added pursuant to the terms governing any Incremental Term Loan, the terms and conditions of such Incremental Term Loan ~~Lenders~~will be deemed not to be more restrictive than the terms and conditions of this Agreement if such financial maintenance covenant is also added for the benefit of this Agreement and (2) no consent shall be required from the Administrative Agent for terms or conditions that are more restrictive than this Agreement if such terms are added to this Agreement); provided, ~~as applicable~~further, ~~customary “SunGard” limited conditionality shall apply~~ that a certificate delivered to the ~~effectiveness~~ Administrative Agent at least five (5) Business Days prior to the incurrence of any such ~~new Loan Commitments in lieu~~ Incremental Term Loan, together with a reasonably detailed description of the material terms and conditions ~~set forth in clauses (i), (ii) and if applicable, (v), above and (B) if~~ applicable to such ~~New~~ Incremental Term Loan ~~Commitments are being used to replace~~ or ~~refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii)~~ drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements of this definition, shall be conclusive evidence that such terms and conditions satisfy the requirements of this definition unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of ~~Maximum Incremental Facilities Amount (“Refinancing Commitments”~~the basis upon which it disagrees)~~, the conditions set forth in clauses (i) and (ii) above shall not apply~~. (biii) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the Lenders with Revolving ~~Credit Commitments~~ Exposure shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with Revolving Credit Commitments~~Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the ~~Revolving Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the Revolving Credit~~ such Loans will be held by existing ~~Revolving Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Commitments, (bii) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each ~~Loan~~ loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a ~~Revolving Credit Loan and~~ Loan, (ciii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (iiiv) each existing Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New ~~Term~~ Revolving Loan Lender, and each New Revolving Loan Lender ~~of any Series shall become a Lender hereunder with respect~~ will automatically and without further act be deemed to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall behave assumed, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting ▇▇▇▇▇▇’s participations hereunder in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and outstanding Letters of Credit ~~under Article 3~~such that, ~~except that~~ after giving effect to each deemed Assignment and Assumption of participations, all of the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co|US-DOCS\140731213.5||

Appears in 1 contract

Sources: Revolving Credit and Guaranty Agreement (Compass, Inc.)

Incremental Facilities. ~~(a) The Borrower~~ Parent may by written notice to the Administrative Agent elect to request the establishment of one (1) or more new term loan commitments which may be in the form of a 54 new Series of New Term Loans or an increase to the amount of Initial Term Loans or any then outstanding Series of New Term Loans (~~x) additional tranches of~~ such new term ~~loans (the~~ loan commitments ~~thereto,~~ or increase the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (~~); provided that, on the “Increased Amount Date, after the making of any New ~~Revolving Credit Commitments” and~~Term Loans, ~~together with~~ the Initial Term Loans must represent more than 50% of the aggregate Loans outstanding plus any undrawn New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments ~~obtained on or prior to such date~~plus any outstanding Indebtedness incurred under Section 6.1(a)(ii). Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which ~~the Borrower~~ Parent proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ five (5) Business Days (or such shorter period as agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (ii) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Term Loan Lender”) to ~~provide all or a~~ whom Parent proposes any portion of such New Term Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. ~~In each case, such~~ Parent may designate any Loan Party as a “Borrower” under the New Term Loan Commitments. Such New Term Loan Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (~~i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii~~1) both before and after giving effect to the making of any Series of New Term Loans or ~~New Revolving~~ increase in Initial Term Loans, each of the ~~conditions~~ following shall be satisfied: (i) the condition set forth in Section 7 3.1(f) (provided that each reference therein to the Effective Date Term Loans shall be ~~satisfied;~~ deemed a reference to the New Term Loans and each reference therein to the Effective Date shall be deemed a reference to the Increased Amount Date), (ii) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date (except to the extent such representations and warranties relate to an earlier date, in which case, such representations and warranties were true and correct in all material respects as of such earlier date) and (iii) no event shall have occurred and be continuing or would result from the consummation of the Borrowing of the New Term Loans that would constitute a Default or an Event of Default; provided that to the extent any such representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty shall be true and correct in all respects); (2) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Parent, each applicable New Term Loan Lender and the ~~Borrower and~~ Administrative Agent, and each of which shall be recorded in the Register and each New Term Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d); (iv~~2.16(c) ~~the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable;~~ and (v3) ~~the Borrower~~ Parent shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated in the applicable Joinder Agreement either as a separate series, an increase to the Initial Term Loans or an increase to any prior series of New Term Loans (in each case a “Series”; for purposes of this Section 2.20, the Initial Term Loans and any increase thereof shall be deemed to be a Series) for all purposes of this Agreement. Except for purposes of this Section 2.20, any New Term Loans made as an increase to the Initial Term Loans shall be deemed to be, effective as of the applicable Increased Amount Date, and after the making of such New Term Loans, Initial Term Loans for all purposes of this Agreement; provided that ~~(A) if~~ for the ~~use~~ avoidance of ~~proceeds of~~ doubt such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans ~~of such Series made pursuant thereto. (d) The terms and provisions of the~~ will remain New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, ~~with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv)~~ for purposes of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment2.20. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co55

Appears in 1 contract

Sources: Senior Secured Term Loan Facility Agreement (New Residential Investment Corp.)

Incremental Facilities. (a) ~~The~~ Borrower may by written notice to Administrative Agent elect to request (A) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Loan Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (B) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $200,000,000 in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative ~~Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)~~Agent. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effective, ~~which shall be a date not less than ten Business Days after~~ and (B) the ~~date on which such notice is delivered to the Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to ~~provide all or a~~ whom Borrower proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (ii2) ~~both before~~ Borrower and its Restricted Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Article 7 as of the last day of the most recently ended Fiscal Quarter after giving effect to ~~the making of any Series of~~ such New Revolving Loan Commitments or New Term ~~Loans or New Revolving Loans~~Loan Commitments, ~~each of the conditions set forth in Section 7 shall be satisfied~~as applicable; (~~iii~~3) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the ~~Borrower~~ New Revolving Loan Lender or New Term Loan Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender and New Term Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(c)~~; (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v4) (i) the Weighted Average Life to Maturity of all New Term Loans of any Series shall be no shorter than the Weighted Average Life Maturity of the Terms Loans, (ii) the applicable New Term Loan Maturity Date of each Series shall be no shorter than the Term Loan Maturity Date and (iii) the Weighted Average Yield and any amortization schedule applicable to the New Term Loans of each Series shall be determined by Borrower and the applicable new Lenders and shall ~~deliver or~~ be set forth in each applicable Joinder Agreement; provided however that the Weighted Average Yield applicable to the New Term Loans shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Term Loans plus 0.50% per annum unless the interest rate with respect to the Term Loan is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Term Loans to equal the Weighted Average Yield then applicable to the New Term Loans minus 0.50%. Each Joinder Agreement with a New Revolving Loan Lender not previously a Lender with a Revolving Commitment hereunder, shall be subject to the consent (not to be ~~delivered any legal opinions~~ unreasonably withheld or ~~other documents reasonably requested by Administrative Agent in connection with any such transaction~~delayed) of Issuing Bank and the Swing Line Lender. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate ~~series (a “Series”)~~ Series of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving ~~Credit Commitments~~ Exposure shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Loan Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Loan Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Loan Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the~~ Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) ~~The terms~~ Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and ~~provisions of~~ in respect thereof (y) the New ~~Term Loans~~ Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any ~~Series~~ Lender with Revolving Exposure, the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. (e) Any New Revolving Loan Commitments shall ~~be, except as otherwise set forth herein or in~~ be on terms and pursuant to documentation applicable to the Revolving Commitments (including the Revolving Commitment Termination Date) and any New Term Commitments and New Term Loans shall be on terms and pursuant to the applicable Joinder Agreement, ~~identical~~ provided that, to ~~one or more Classes of~~ the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that extent such terms are ~~Refinancing Commitments, no earlier than that of~~ not consistent with the Term ~~Loans being refinanced)~~ Commitments and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or except as provided in ~~the case~~ clause (4) of ~~New Term Loans that are Refinancing Commitments~~Section 2.23(a)), ~~no shorter than that of the Term Loans being refinanced) and (iii) all other~~ such terms ~~applicable to the New Term Loans of each Series that differ from the existing Term Loans~~ shall be reasonably ~~acceptable~~ satisfactory to ~~the~~ Administrative ~~Agent (as evidenced by its execution of the applicable Joinder Agreement)~~Agent. The ~~terms and provisions~~ proceeds of ~~the New Revolving Loans and New Revolving Credit Commitments~~ each Incremental Facility shall be ~~identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide~~ used for ~~(a) a commitment termination date that is later than the commitment termination date~~ general corporate purposes of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and ~~the Lenders providing such New Revolving Credit Commitments~~its Restricted Subsidiaries, including Permitted Acquisitions and Restricted Junior Payments. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of ~~the~~ Administrative ~~Agent,~~ Agent to effect the provision of this Section ~~2.14~~2.23. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Digitalglobe Inc)

Incremental Facilities. (a) The ~~Borrower may~~ Company may, by written notice to ~~Administrative~~ the Agent ~~elect~~ (A) from time to time following the Closing Date and prior to the Revolving Commitment Termination Date, request ~~the establishment of~~ one or more ~~(x) additional tranches of term loans (~~increases to the ~~commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in~~ then-existing Revolving ~~Credit~~ Commitments (~~the~~ any such increase, “New Revolving ~~Credit~~ Commitments,” ~~and~~and the loans made pursuant thereto, ~~together with the New Term Loan Commitments, the~~ “New ~~Loan Commitments~~Revolving Loans”~~), by~~ ) in an aggregate amount not in excess of ~~the Maximum Incremental Facilities Amount in the aggregate and not less than~~ $~~100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and~~ 125,000,000 for all such ~~New Loan Commitments obtained on or prior to such date)~~increases following the Closing Date. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the ~~Borrower~~ Company proposes that the New ~~Loan~~ Revolving Commitments shall be ~~effective~~effective and the identity of each Lender or other Person that is an Eligible Assignee (each, ~~which shall~~ a “New Revolving Loan Lender”) to whom the Company proposes any portion of such New Revolving Commitments be ~~a date not less than ten Business Days after~~ allocated and the ~~date on which~~ amounts of such ~~notice is delivered~~ allocations. If the Company elects to request that the ~~Administrative Agent. The Borrower~~ Agent arrange the New Revolving Commitments, the Agent may ~~approach~~ elect or decline to arrange such New Revolving Commitments in its sole discretion, and any Lender ~~or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or~~ approached to provide all or a portion of the New ~~Loan~~ Revolving Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Commitment. ~~In each case~~Such New Revolving Commitments, ~~such New Loan Commitments~~ shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date immediately before or after giving effect to such New ~~Loan~~ Revolving Commitments, ; and (2) the Company shall deliver or cause to be delivered officer’s certificates and legal opinions substantially similar to those delivered on the Effective Date (as ~~applicable; (ii~~they may apply to such a transaction) ~~both before and after giving effect~~ to the ~~making of~~ extent reasonably requested by the Agent in connection with any ~~Series of New Term Loans or~~ such transaction. (b) All New Revolving ~~Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan~~ Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Company, the New Revolving Loan Lender(s) and ~~Administrative~~ the Agent, ~~and~~ each of which shall be recorded in the ~~Register~~ Register. Each Joinder Agreement 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 opinion of the Agent, to effect the provisions of this Section 2.16. Each New Revolving Commitment shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans deemed for all purposes ~~of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement~~a Revolving Commitment, ~~if agreed among the Borrower and the~~ each New Revolving Loan ~~Lenders and/or~~ shall be deemed for all purposes a Revolving Loan, and each New ~~Term~~ Revolving Loan ~~Lenders, as applicable, customary “SunGard” limited conditionality~~ Lender shall ~~apply~~ become a Lender hereunder. This Section 2.16(b) shall supersede any provisions of Section 2.14 or 10.01 to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applycontrary. (bc) On any Increased Amount Date on which New Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, ~~(a)~~ each of the existing Revolving Loan Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ existing Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by then-existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Commitments to the Revolving ~~Credit~~ Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The ~~terms and provisions~~ Agent shall notify Lenders promptly upon receipt of the ~~New Term Loans~~ Company’s notice of each Increased Amount Date and ~~New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or~~ in ~~the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that~~ respect thereof (iy) the ~~applicable~~ New ~~Term~~ Revolving Commitments and the New Revolving Loan ~~Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date~~ Lenders, and (or z) in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable each notice to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New any Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term LoansLender, the ~~Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of~~ respective interests in such ~~notice to each of the Lenders of the applicable Existing Term~~ Revolving Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were convertedLender’s Revolving Loans, in each case ~~as more particularly set forth in paragraph (iv) of~~ subject to the assignments contemplated by this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted2.16. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (NMI Holdings, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative Agent and each Lender, elect to ~~request~~ request, prior to the ~~establishment~~ last day of ~~one or more~~ the Revolving Period, an increase to the existing Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term Loan~~ Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together~~ by an amount with the ~~New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess~~ consent of ~~the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by~~ the Administrative Agent ~~or (y) shall constitute~~ and each Lender whose Commitment is being increased thereby in their respective sole discretion and subject to any internal approvals, which would increase the ~~difference between the Maximum Incremental Facilities~~ Facility Amount ~~and all such New Loan Commitments obtained on or prior~~ to ~~such date)~~an amount greater than $200,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Commitments shall be ~~effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to~~ effective and approved in writing by the Administrative ~~Agent. The Borrower may approach any~~ Agent and (ii) the identity of each Lender or ~~any~~ other Person (~~other than a natural person~~each, an “Increasing Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New ~~Loan~~ Commitments be allocated and the amounts of such allocations (if then known). Such New Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (iA) no ~~Default or~~ Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments~~, as applicable~~; (~~ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~B) the New ~~Loan~~ Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender or one or more Joinder ~~Agreements~~ Supplements for any new Lender executed and delivered by the ~~Borrower~~ Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the ~~Register and shall be subject to the requirements set forth in Section 5.4(d)~~Register; (ivC) the Borrower shall ~~make~~ pay any ~~payments required pursuant to Section 2.11~~ applicable Breakage Fees in connection with the New ~~Loan~~ Commitments and shall pay any other required fees in connection with the New Commitments~~, as applicable~~; ~~and~~ (vD) the Borrower shall deliver or cause to be delivered any legal opinions or other customary closing documents (substantially consistent with the documents set forth in Section 3.01) reasonably requested by Administrative Agent or an Increasing Lender in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series~~ ; and (~~a “Series”~~E) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of ~~such new Loan~~ any allocation of New Commitments ~~in lieu~~ to a non-Lender shall be subject to the prior written consent of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applyAdministrative Agent. (b) On any Increased Amount Date on which New ~~Revolving Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the existing Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each~~of the Increasing Lenders, ~~a “New Revolving Loan Lender”)~~ and each of the ~~New Revolving Loan~~ Increasing Lenders shall purchase from each of the ~~Lenders with Revolving Credit Commitments~~existing Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the ~~Revolving Credit Loans outstanding~~ Advances Outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the Revolving Credit Loans~~ such Advances will be held by existing ~~Revolving Credit~~ Lenders and ~~New Revolving Loan~~ Increasing Lenders ratably in accordance with their ~~Revolving Credit~~ Commitments after giving effect to the addition of such New ~~Revolving Credit~~ Commitments to the ~~Revolving Credit~~ Commitments, (bii) each New ~~Revolving Credit~~ Commitment shall be ~~deemed~~ deemed, for all ~~purposes~~ purposes, a ~~Revolving Credit~~ Commitment and each ~~Loan~~ Advance made thereunder (a “New ~~Revolving Loan~~Advance”) shall be deemed, for all purposes, ~~a Revolving Credit Loan~~ an Advance and (ciii) each ~~New Revolving Loan~~ new Lender shall become a Lender with respect to the ~~New Revolving Credit Commitment~~ Commitments and all matters relating thereto. (c) ~~On any~~ The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrowe’s notice of each Increased Amount Date ~~on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms~~ and ~~conditions,~~ in respect thereof (i) ~~each Lender with a~~ the New ~~Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to~~ Commitments and the ~~Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series,~~ Increasing Lenders and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of ~~New Term Loans that are Refinancing Commitments~~each notice to any Lender, ~~no earlier than that of~~ the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical~~respective interests in such Lende’s Advances, ~~(ii) the fees, pricing and the amortization schedule applicable~~ in each case subject to the ~~New Term Loans of each Series shall be determined~~ assignments contemplated by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement)this Section 2.21. The terms and provisions of the New ~~Revolving Loans and New Revolving Credit Commitments~~ Advances shall be identical to the ~~2020 Revolving Credit Loans~~ Advances. Each Assignment and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (Acceptance or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments~~each Joinder Supplement, ~~later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing~~ as ~~agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement~~ applicable, may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Transaction Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, and consented to by the Borrower (such consent not to be unreasonably withheld), to effect the ~~provision~~ provisions of this Section ~~2.14~~2.21. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Loan and Servicing Agreement (GOLUB CAPITAL BDC, Inc.)

Incremental Facilities. ~~(a)~~ The U.S. Borrower may by written notice to the Administrative ~~Agent~~ Agent, not more than three times during the term of this Agreement, elect to request the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term ~~Loan~~ Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $125,000,000 in the aggregate and not less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $125,000,000 and all such New ~~Loan~~ Term Commitments obtained ~~on or~~ prior to such date), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the U.S. Borrower proposes that the New ~~Loan~~ Term Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent~~. The~~ ; provided that the U.S. Borrower ~~may approach any Lender or any Person (other than a natural person)~~ shall first offer the Lenders the opportunity to provide all ~~or a portion~~ of the New ~~Loan Commitments~~Term Commitments prior to approaching any other Person that is an Eligible Assignee pursuant to Section 9.07(a); ~~provided~~ provided, further, that any Lender offered or approached to provide all or a portion of the New ~~Loan~~ Term Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Term Commitment, and no Lender shall, as a result of such rejection, be deemed to be in default in any respect hereunder. ~~In each case, such~~ Such New ~~Loan~~ Term Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (ia) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Term Commitments, ~~as applicable;~~ (iib) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving Loans~~Advances, each of the conditions set forth in Section 7 3.02 shall be satisfied; , (~~iii~~c) the U.S. Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 5.04 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Term Commitments and any Investment or other transaction to be consummated in connection therewith, (d) the New ~~Loan~~ Term Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower and~~ U.S. Borrower, the Administrative ~~Agent~~Agent and, with respect to New Term Loans of any Series, each New Term Lender providing New Term Commitments in respect of such Series, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.12(e); , (ive) the U.S. Borrower shall make any payments required pursuant to Section ~~2.11~~ 9.04(c) in connection with the New ~~Loan~~ Term Commitments, ~~as applicable;~~ (f) the Administrative Agent shall have received evidence satisfactory to it from the U.S. Borrower that the incurrence of such New Term Advances will not violated the terms of any Subordinated Debt Document and (vg) the U.S. Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term ~~Loans~~ Advances made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term ~~Loans~~ Advances for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) . On any Increased Amount Date on which any New Term ~~Loan~~ Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (ia) each Lender with a New Term ~~Loan~~ Commitment (each, a “New Term ~~Loan~~ Lender”) of any Series shall make ~~a Loan~~ an advance to the U.S. Borrower (a “New Term ~~Loan~~Advance”) in an amount equal to its New Term ~~Loan~~ Commitment of such Series, and (iib) each New Term ~~Loan~~ Lender of any Series shall become a Lender hereunder with respect to the New Term ~~Loan~~ Commitment of such Series and the New Term ~~Loans~~ Advances of such Series made pursuant thereto~~. (d)~~ . The terms and provisions of the New Term ~~Loans~~ Advances and New Term ~~Loan~~ Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes~~ the Term Advances; provided, however, that (a) the weighted average life to maturity of all New Term Advances shall be no shorter than the weighted average life to maturity of the ~~existing Initial~~ Term ~~Loans; provided that~~ Advances, (ib) the applicable New Term ~~Loan~~ Advance Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ final maturity of the Term ~~Loans being refinanced)~~ Advances and ~~mandatory prepayment rights~~ (~~other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii~~c) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New Term ~~Loans~~ Advances of each Series shall be determined by the U.S. Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section ~~2.14~~2.16. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (Accuride Corp)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in existing Incremental Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (y) new or additional tranches of Revolving Credit Commitments (the “~~New~~ Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate (as determined at the time of incurrence) and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount (as determined at the time of incurrence) and all such New Loan Commitments obtained on or prior to such ~~date~~date (after giving effect to any reallocation)). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, ~~which shall be a date not less than ten Business Days after~~ the ~~date on~~ Borrower to which such ~~notice is delivered~~ New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) subject to the LCT Provisions, no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Specified Event of Default) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Additional Revolving Credit ~~Commitments pursuant to clause (iii)~~ Loans shall be designated a separate Series of ~~the definition~~ Additional Revolving Credit Loans for all purposes of ~~Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~this Agreement. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Incremental Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Incremental Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Lenders holding such Incremental Revolving Credit ~~Lenders~~ Commitments and New Revolving Loan Lenders ratably in accordance with their Incremental Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Incremental Revolving Credit Commitments, and (b) with respect to new Incremental Revolving Credit Commitments, (bi) each Loan made under a New Revolving Credit Commitment ~~shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder~~ (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent shall have consented (not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(a) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the ~~Borrower~~ Borrower, as specified in the applicable Notice of Borrowing, (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (~~or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (~~other than ~~scheduled amortization) of~~ with respect to customary bridge loans (as reasonably determined by the ~~New Term Loans and the existing Term Loans shall be identical,~~ Borrower)); (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans (other than with respect to customary bridge loans (as reasonably determined by the Borrower)) shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ then existing Initial Term Loans (calculated without giving effect to prepayments of the Term Loans), (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans ~~(or~~ shall be determined by the Borrower(s) and the Lenders thereunder; provided that in the case of New Term Loans that are ~~Refinancing Commitments~~debt facilities (other than revolving facilities) that are secured by Liens on the Collateral that are pari passu to the Liens on the Collateral securing the Obligations, ~~no shorter than that~~ if the Effective Yield for Eurocurrency Loans in respect of such New Term Loans exceeds the Effective Yield for Eurocurrency Loans in respect of the then existing Initial Term Loans ~~being refinanced) and (iii) all other terms applicable~~ by more than 0.50%, the Applicable Margin for Eurocurrency Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for Eurocurrency Loans in respect of the New Term Loans ~~of each Series that differ from~~ minus 0.50% (this clause (iii), including all qualifications, exceptions and exclusions thereto, the “MFN Provisions”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except as to interest rates, fees and any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions , but subject to the foregoing clauses (i), (ii) or (iii) above), and other than for covenants applicable only to periods after the then Latest Term Loan Maturity Date, the New Term Loans shall be have covenants that are either (w) reasonably acceptable to the Administrative ~~Agent~~ Agent, (x) substantially similar to the material terms of the Initial Term Loans, (y) on then market terms (as ~~evidenced~~ reasonably determined by the Borrower) or (z) when taken as a whole, no more restrictive (as determined by the Borrower in good faith) to the Borrower and its ~~execution~~ Subsidiaries, taken as a whole, than those applicable to the Initial Term Loans; it being understood and agreed that such New Term Loans may be incurred (and shall be deemed acceptable to the Administrative Agent) if such more restrictive covenant is added (only for the period prior to the then Latest Term Loan Maturity Date) for the benefit of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit CommitmentsInitial Term Loans; provided that ~~New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than~~ the ~~commitment termination date~~ addition of such more restrictive covenant shall not require the consent of the ~~2020 Revolving Credit Commitments~~ Administrative Agent or any other Secured Party (~~or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced)~~ and ~~(b) fees and pricing as agreed between~~ may be implemented with only the Borrower and the ~~Lenders~~ lenders providing such New ~~Revolving Credit Commitments~~Term Loans). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower. (f) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section ~~2.14~~2.14 (including, without limitation, (i) to increase the Applicable Margin in respect of the applicable Term Loans pursuant to Section 2.14(d)(iii) or in order to match the Applicable Margin to any New Term Loans in lieu thereof if such modification results in a greater increase or (ii) to extend the period during which the requirements of Section 5.1(b) are applicable in order to conform such time period to any similar requirements of the New Term Loans) or (iii) subject to Section 13.1(a)(i), to modify the scheduled amortization payments of applicable Term Loans to conform such payments to those of the New Term Loans, but in any event not less than otherwise payable to such applicable Term Lender. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established; provided, ~~which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except~~ however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and other than for covenants applicable only to periods after the then Latest Term Loan Maturity Date, the covenants of such Extended Term Loans shall be either (w) reasonably acceptable to the Administrative Agent, (x) substantially similar to the material terms of the Initial Term Loans, (y) on then market terms (as reasonably determined by the Borrower) or (z) when taken as a whole, no more restrictive (as determined by the Borrower in good faith) to the Borrower and its Subsidiaries, taken as a whole, than those applicable to Existing Term Loan Class; it being understood and agreed that such Extended Term Loans may be incurred (and shall be deemed acceptable to the Administrative Agent) if such more restrictive covenant is added (only for the period prior to the then Latest Term Loan Maturity Date) for the benefit of the Existing Term Loan Class; provided that the addition of such more restrictive covenant shall not require the consent of the Administrative Agent or any other Secured Party (and may be implemented with only the Borrower and the lenders providing such Extended Term Loans). Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of ~~the Revolving Credit Commitments,~~ any Extended Revolving Credit Commitments and/or any ~~New~~ Incremental Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments) (a “Revolving Credit Extension Request”~~Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which ~~terms~~ shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated as determined by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6Borrower. No Lender shall have any obligation to agree to have any of its ~~Revolving Credit Loans~~ then existing loans or ~~Revolving Credit Commitments~~ commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coCre

Appears in 1 contract

Sources: Credit Agreement (Skillsoft Corp.)

Incremental Facilities. ~~(a)~~ The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more ~~(x) additional tranches of~~ new term ~~loans~~ loan commitments (the ~~commitments thereto, the~~ “~~New~~ Incremental Term Loan Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ by an ~~aggregate~~ amount ~~not in excess of the Maximum Incremental Facilities Amount in the aggregate and~~ not less than $~~100,000,000~~ 5,000,000 individually ~~(or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $1,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the ~~New~~ Incremental Term Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (B) the identity of each Lender or ~~any~~ other Person that is an Eligible Incremental Term Loan Lender (~~other than~~ each a ~~natural person~~“Incremental Term Loan Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of such Incremental Term Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the ~~New~~ Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide a ~~New~~ Incremental Term Loan Commitment. ~~In each case, such New~~ Such Incremental Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such ~~New~~ Incremental Term Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of any ~~Series of New~~ Incremental Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.02 shall be satisfied; (~~iii~~3) the ~~New~~ Senior Secured Leverage Ratio on a pro forma basis after giving effect to such Incremental Term Loan Commitments as of the last day of the most recently ended Fiscal Quarter shall be less than 2.50:1.00; (4) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.19(e) (in the case of a Incremental Term Loan Lender that is a Foreign Lender)~~; (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v5) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any ~~New~~ Incremental Term Loan Commitments ~~of any Series~~ are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a New~~ Incremental Term Loan ~~Commitment (each, a “New Term Loan Lender”) of any Series~~ Lender shall make a Loan to the Borrower (a “~~New~~ Incremental Term Loan”) in an amount equal to its ~~New~~ Incremental Term Loan ~~Commitment of such Series~~Commitment, and (ii) each ~~New~~ Incremental Term Loan Lender ~~of any Series~~ shall become a Term Lender hereunder with respect to the ~~New~~ Incremental Term Loan Commitment ~~of such Series~~ and the ~~New~~ Incremental Term Loans ~~of such Series~~ made pursuant thereto~~. (d)~~ . The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof of Incremental Term Loan Commitments and the Incremental Term Loan Lenders, subject to the assignments contemplated by this Section. The terms and provisions of the ~~New~~ Incremental Term Loans and ~~New~~ Incremental Term Loan Commitments ~~of any Series~~ shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes of~~ the ~~existing~~ Initial Term Loans~~; provided that~~ . In any event (i) the ~~applicable New Term Loan Maturity Date~~ weighted average life to maturity of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing all Incremental Term Loans shall be ~~identical~~no shorter than the weighted average life to maturity of the Initial Term Loans, (ii) the ~~fees, pricing~~ applicable Incremental Term Loan Maturity Date shall be no shorter than the final maturity of the Initial Term Loans and (iii) the ~~amortization schedule~~ rate of interest applicable to the ~~New~~ Incremental Term Loans ~~of each Series~~ shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however that the ~~weighted average life~~ interest rate applicable to ~~maturity of all New~~ the Incremental Term Loans shall not be ~~no shorter~~ greater than the ~~weighted average life~~ interest rate applicable to ~~maturity of the 2018B Second New~~ Initial Term Loans ~~(or in~~ plus 0.25% per annum unless the ~~case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms~~ applicable interest rate applicable to the ~~New~~ Initial Term Loans ~~of each Series that differ from~~ is increased so as to equal the ~~existing~~ interest rate applicable to the Incremental Term Loans ~~shall be reasonably acceptable~~ less 0.25% per annum (with corresponding increases to the ~~Administrative Agent (as evidenced by its execution of~~ other Applicable Rates applicable to the ~~applicable Joinder Agreement~~Term Loans). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14~~2.22. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit and Guaranty Agreement (American Reprographics CO)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable (unless, in connection with an acquisition or investment subject to customary “Sungard” or “certain funds” conditionality, otherwise agreed to by the Lenders providing such Incremental Loans), as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Additional Revolving Credit ~~Commitments pursuant to clause (iii)~~ Loans shall be designated a separate Series of ~~the definition~~ Additional Revolving Credit Loans for all purposes of ~~Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~this Agreement. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ Initial Term Loans, (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans ~~(or~~ shall be determined by the Borrower and the Lenders thereunder; provided that solely in the case of New Term Loans ~~that are Refinancing Commitments, no shorter than that~~ incurred prior to the 18 month anniversary of the Closing Date, if the Effective Yield for LIBOR Loans in respect of such New Term Loans ~~being refinanced) and (iii) all other terms applicable~~ exceeds the Effective Yield for LIBOR Loans in respect of the Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans in respect of the New Term Loans ~~of each Series that differ from~~ minus 0.50%; and (iv) to the ~~existing~~ extent such terms and documentation are not consistent with the Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and New~~ Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the ~~2020~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the ~~2020~~ Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments; , (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that ~~New~~ the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may ~~provide for (a)~~ constitute a ~~commitment termination date that is later than~~ separate Class or Classes, as the ~~commitment termination date~~ case may be, of Commitments from the ~~2020~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (~~or in~~ viii) the ~~case~~ pricing, fees, maturity and other immaterial terms of ~~New~~ the Additional Revolving Credit ~~Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced)~~ Loans may be different and ~~(b) fees and pricing as agreed between~~ shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (Visant Corp)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” ~~and,~~ and together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) ~~if the use~~ as part of ~~proceeds~~ a Series of ~~such New Loan Commitments is an acquisition or investment permitted under~~ existing Term Loans for all purposes of this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments (and each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) are effected, subject to the satisfaction of the foregoing terms and conditions, ~~(a)~~ each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit ~~Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment~~ Commitments and ~~each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c)~~ each New Revolving Loan Lender and shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or New Revolving Loan Lender’s providing such New Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or New Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the New Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Term A Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second New~~ then existing Term A Loans ~~(or~~ as calculated without giving effect to any prepayments made in ~~the case of New Term Loans that are Refinancing Commitments, no shorter than that of~~ connection with the Term ~~Loans being refinanced) and~~ Loans; (iii) ~~all other terms~~ the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to ~~the~~ any New ~~Term Loans of each Series that differ from the existing~~ Term Loans shall be determined by the Borrower and the Lenders thereunder;; and (iv) to the extent such terms and documentation are not consistent with the then existing Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and~~ Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) New Revolving Credit Commitments shall be identical to the ~~2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New~~ Revolving Credit Commitments ~~may provide for~~ of the applicable Class (aother than with respect to upfront fees) ~~a commitment termination date that is later~~ and other than the ~~commitment termination date of the 2020 Revolving Credit Commitments (or~~ Maturity Date and as set forth in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitmentsthis Section 2.14(e). (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section ~~2.14(f~~2.14(g) below~~) and~~ ), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional ~~fees~~ fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension ~~Amendment~~Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit ~~Commitments~~Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit ~~Commitments) (a “Revolving Credit Extension Request”~~Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which ~~terms~~ shall not be ~~identical to those applicable~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the applicable Existing Revolving Credit Commitments ~~from which they are to be extended~~ (the “Specified Existing Revolving Credit Commitment”) ~~except~~ unless (x) the Lenders providing existing Revolving Credit Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Revolving Credit Termination Date, in each case, to the extent provided in the applicable Extension Amendment; provided, however, that (w) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) x) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees and premiums may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (zy) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the ~~Revolving Credit Commitment Fee Rate~~ revolving credit commitment fee rate for the Specified Existing Revolving Credit Commitment~~, in each case, to the extent provided in the applicable Extension Amendment~~; provided that, notwithstanding anything to the contrary in this Section ~~2.14(f~~2.14(g) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any ~~Old~~ Original Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Original Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coTerm

Appears in 1 contract

Sources: Joinder and Amendment and Restatement Agreement (National Vision Holdings, Inc.)

Incremental Facilities. (a) The ~~Borrower may~~ Company may, by written notice to ~~Administrative Agent~~ the Agent, elect to request (A) from time to time prior to the ~~establishment of~~ Revolving Commitment Termination Date, one or more ~~(x) additional tranches of term loans (~~increases to the ~~commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in~~ then-existing Revolving ~~Credit~~ Commitments (~~the~~ any such increase, “New Revolving ~~Credit~~ Commitments~~” and~~”, ~~together with~~ and the ~~New Term Loan Commitments~~loans made pursuant thereto, ~~the~~ “New ~~Loan Commitments~~Revolving Loans”~~), by~~ ) in an aggregate amount not in excess of $35,000,000 for all such increases, and/or (B) from time to time prior to the ~~Maximum Incremental Facilities Amount in~~ Maturity Date applicable to the Term Loans, the establishment of one or more new term loan commitments (“New Term Loan Commitments”, and the loans made pursuant thereto, “New Term Loans”); provided, that the aggregate amount of all such increases pursuant to the foregoing clauses (A) and ~~not less than $100,000,000 individually~~ (~~or such lesser amount as (x) may be approved by the Administrative Agent or (y~~B) shall ~~constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date)~~not exceed $75,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the ~~Borrower~~ Company proposes that the New Revolving Commitments or New Term Loan Commitments, as applicable, shall be effective and the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to whom the Company proposes any portion of such New Revolving Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. If the Company elects to request that the Agent arrange the New Revolving Commitments or New Term Loan Commitments, the Agent may elect or decline to arrange such New Revolving Commitments or New Term Loan Commitments ~~shall be effective~~in its sole discretion, ~~which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach~~ and any Lender ~~or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or~~ approached to provide all or a portion of the New Revolving Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Commitment or a New Term Loan Commitment. ~~In each case~~Such New Revolving Commitments or New Term Loan Commitments, ~~such New Loan Commitments~~ as applicable, shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date immediately before or after giving effect to such New Revolving Commitments or New Term Loan Commitments, as applicable; (ii2) ~~both~~ immediately before and after giving effect to the making of any ~~Series~~ New Term Loans, the condition set forth in Section 4.02(b) shall be satisfied; (3) the Company and its Subsidiaries shall be in compliance on a Pro Forma Basis (including after giving effect to any transaction related to such incurrence of such New Revolving Commitment or New Term Loan Commitment and assuming the full amount thereof is drawn) with the Financial Covenants as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered (and with respect to Section 7.12, as of such Increased Amount Date) after giving effect to such New Revolving Commitments or New Term Loan Commitments, as applicable; and (4) the Company shall deliver or cause to be delivered officer’s certificates and legal opinions substantially similar to those delivered on the Closing Date (as they may apply to such a transaction) to the extent reasonably requested by the Agent in connection with any such transaction. Notwithstanding the foregoing, if the proceeds of the New Term Loan Commitments or New Revolving Commitments, as applicable, will be applied to finance a Limited Condition Acquisition, compliance with clauses (1)-(3) shall be determined in accordance with Section 1.05. (b) The terms and provisions of any New Term Loans and New Term Loan Commitments shall be as set forth herein and in the applicable Joinder Agreement; provided that: (1) any New Term Loans and New Term Loan Commitments made on an Increased Amount Date may be designated as a separate Term Loan Facility or as an increase to an existing Term Loan Facility, in each case for all purposes of this Agreement, and any New Revolving Loans and New Revolving Commitments shall be documented solely as an increase to a Revolving Facility and shall have terms and provisions identical to those of such Revolving Facility; (2) any New Term Loans and New Term Loan Commitments may rank pari passu or junior in right of payment and pari passu or junior in priority of security with the existing Term Loan Facilities or may be unsecured; (3) in the event any New Term Loans rank pari passu in right of payment and pari passu in priority of security with the existing Term Loan Facilities, (i) the Weighted Average Life to Maturity of such New Term Loans shall be no shorter than the Weighted Average Life to Maturity of any existing Term Loan Facility, (ii) the applicable Maturity Date of such New Term Loans shall be no earlier than the Latest Maturity Date applicable to the existing Term Loan Facilities, (iii) the Weighted Average Yield applicable to any such New Term Loans shall not be greater than the applicable Weighted Average Yield with respect to the Initial Term Loans plus 0.50% per annum unless the Applicable Margin with respect to the Initial Term Loans is increased (which increase may, at the Company’s election, be effected by the Company without the consent of any Lender) so as to cause the then applicable Weighted Average Yield of the Initial Term Loans to equal the Weighted Average Yield then applicable to such New Term Loans minus 0.50% per annum, and (iv) such New Term Loans and New Term Loan Commitments shall be subject to covenants and events of default applicable to substantially the same as, or that are in the good faith judgment of the Company, not less materially more favorable, on the whole, to the Lenders providing such New Term Loans and New Term Loan Commitments than, those applicable to the existing Term Loan Facilities (except for covenants, events of default or other provisions that are applicable only after the occurrence of the Latest Maturity Date applicable to the existing Term Loan Facilities); (4) in the event any New Term Loans and New Term Loan Commitments (x) rank junior in right of payment or junior in priority of security with the existing Term Loan Facilities or (y) are unsecured, such New Term Loans or New ~~Revolving Loans~~Term Loan Commitments shall not mature, or have amortization (other than customary mandatory prepayments upon asset sales or casualty events), in each case, prior to the date that is six months after the Latest Maturity Date applicable to any existing Term Loan Facility that is senior in right of payment or priority to such New Term Loans and New Term Loan Commitments and (ii) be subject to covenants and events of default substantially the same as, or that are in the good faith judgment of the ~~conditions set forth in Section 7 shall be satisfied;~~ Company, not materially more favorable, on the whole, to the Lenders providing such New Term Loans and New Term Loan Commitments than, those applicable to any existing Term Loan Facility (~~iii~~except for covenants, events of default or other provisions that are applicable only after the occurrence of the Latest Maturity Date applicable to the existing Term Loan Facilities); (5) the New Term Loans and New Term Loan Commitments may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments pursuant to Section 2.09(a) or any mandatory prepayments of the Initial Term Loans under Section 2.09(d), as specified in the applicable Joinder Agreement; (6) the New Term Loans and New Term Loan Commitments shall (i) to the extent secured or subordinated, be subject to customary intercreditor and/or subordination arrangements reasonably satisfactory to the Company and the Agent and (ii) be guaranteed solely by the Subsidiary Guarantors and, to the extent secured, be secured solely by the Collateral. (c) All New Revolving Commitments and New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Company, the New Revolving Loan Lender(s) or New Term Loan Lender(s), as applicable, and ~~Administrative~~ the Agent, ~~and~~ each of which shall be recorded in the ~~Register~~ Register. Each Joinder Agreement 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 opinion of the Agent, to effect the provisions of this Section 2.15. Each New Revolving Commitment and New Term Loan Commitment shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans deemed for all purposes ~~of this Agreement; provided that (A) if the use of proceeds of such New~~ a Revolving Commitment or Term Loan ~~Commitments is an acquisition or investment permitted under this Agreement~~Commitment, ~~if agreed among the Borrower and the~~ respectively, each New Revolving Loan ~~Lenders and/or~~ or New Term Loan ~~Lenders~~shall be deemed for all purposes a Revolving Loan or Term Loan, ~~as applicable~~respectively, ~~customary “SunGard” limited conditionality~~ and each New Revolving Loan Lender and New Term Loan Lender shall ~~apply~~ become a Lender hereunder. This Section 2.15(c) shall supersede any provisions of Section 2.14 or 10.01 to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not applycontrary. (bd) On any Increased Amount Date on which New Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, ~~(a)~~ each of the existing Revolving Loan Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ existing Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by then-existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Commitments to the Revolving ~~Credit~~ Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (ce) On any Increased Amount Date on which any New Term Loan Commitments ~~of any Series~~ are ~~effective~~effective (or on such later date as may be provided in the applicable Joinder Agreement), subject to the satisfaction of the foregoing terms and conditions, ~~(i)~~ each ~~Lender with a~~ New Term Loan ~~Commitment~~ Lender shall (~~each, a “~~x) make New Term Loan ~~Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”)~~ in an amount equal to its New Term Loan ~~Commitment of such Series~~Commitment, and (ii) ~~each New Term Loan Lender of any Series shall~~ become a Lender hereunder ~~with~~ (to the extent not already a Lender hereunder) pursuant to the applicable Joinder Agreement. (f) The Agent shall notify Lenders promptly upon receipt of the Company’s notice of each Increased Amount Date and in respect to thereof (y) the New Revolving Commitments and the New Revolving Loan Lenders or the New Term Loan ~~Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans~~ Commitments and New Term Loan ~~Commitments of any Series shall be~~Lenders , ~~except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that~~ and (iz) ~~the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or~~ in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable each notice to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New any Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term LoansLender, the ~~Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of~~ respective interests in such ~~notice to each of the Lenders of the applicable Existing Term~~ Revolving Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were convertedLender’s Revolving Loans, in each case ~~as more particularly set forth in paragraph (iv) of~~ subject to the assignments contemplated by this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted2.15. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (NMI Holdings, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Aramark)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coany

Appears in 1 contract

Sources: Credit Agreement (First Data Corp)

Incremental Facilities. (a) The ~~Borrower~~ Company may by written notice to ~~Administrative~~ Syndication Agent elect to request the establishment of one or more ~~(x) additional tranches of~~ new term ~~loans (the~~ loan commitments ~~thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments~~ (the “New ~~Revolving Credit Commitments” and, together with the New~~ First Lien Term Loan Commitments~~, the “New Loan Commitments”~~"), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $35,000,000 in the aggregate and not less than $~~100,000,000~~ 5,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent and Syndication Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $35,000,000 and all such New First Lien Term Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $500,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”") on which the ~~Borrower~~ Company proposes that the New First Lien Term Loan ~~Commitments~~ Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to Syndication Agent and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New First Lien Term Loan Lender”, as applicable) to ~~provide all or a~~ whom the Company proposes any portion of ~~the~~ such New First Lien Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New First Lien Term Loan Commitments may elect or decline, in its sole discretion, to provide a New First Lien Term Loan Commitment. ~~In each case, such~~ Such New First Lien Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New First Lien Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any Series of New First Lien Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.2 shall be satisfied; (~~iii~~3) the Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New First Lien Term Loan Commitments, as applicable; (4) the New First Lien Term Loan ~~Commitments~~ Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Company and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(c); (iv5) the ~~Borrower~~ Company shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New First Lien Term Loan Commitments, as applicable; and (v6) the ~~Borrower~~ Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New First Lien Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”") of New First Lien Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New First Lien Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New First Lien Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to the ~~Borrower~~ Company (a “New First Lien Term Loan”) in an amount equal to its New First Lien Term Loan Commitment of such Series, and (ii) each New First Lien Term Loan Lender of any Series shall become a Lender hereunder with respect to the New First Lien Term Loan Commitment of such Series and the New First Lien Term Loans of such Series made pursuant thereto~~. (d)~~ . Administrative Agent shall notify Lenders promptly upon receipt of the Company’s notice of each Increased Amount Date and in respect thereof the Series of New First Lien Term Loan Commitments and the New First Lien Term Loan Lenders of such Series, as applicable. The terms and provisions of the New First Lien Term Loans and New First Lien Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes of~~ the ~~existing Initial~~ First Lien Term Loans~~; provided that~~ . In any event (i) the weighted average life to maturity of all New First Lien Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Revolving Loans and the First Lien Terms Loans, (ii) the applicable New First Lien Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ latest of the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization)~~ final maturity of the ~~New Term~~ Revolving Loans and the ~~existing~~ First Lien Term ~~Loans shall be identical~~Loans, and (iiiii) the ~~fees, pricing and the amortization schedule~~ rate of interest applicable to the New First Lien Term Loans of each Series shall be determined by the ~~Borrower~~ Company and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms interest rate applicable to the New ~~Term Loans of each Series that differ from the existing~~ First Lien Term Loans shall not be ~~reasonably acceptable~~ greater than the highest interest rate that may, under any circumstances, be payable with respect to First Lien Term Loans plus 25 basis points per annum, unless the interest rate with respect to the ~~Administrative Agent (~~First Lien Term Loan is increased so as ~~evidenced by its execution of~~ to equal the interest rate applicable ~~Joinder Agreement). The terms and provisions of~~ to the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) First Lien Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and Syndication Agent, to effect the provision of this Section ~~2.14~~2.24. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Day International Group Inc)

Incremental Facilities. (a) ~~The~~ Any Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments of any Class (the “Newwhich may be incurred in Dollars, Euros, Pounds Sterling or any other Alternative Currency) (the “New Revolving Credit Commitments”) and/or (z) additional tranches of Revolving Credit Commitments (which may be incurred in Dollars, Euros, Pounds Sterling or any other Alternative Currency) (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments; and together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which ~~the~~ such Borrower proposes that the New Loan Commitments shall be effective~~, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent~~. ~~The~~ Each Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.4) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by ~~the~~ such Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d);~~ 5.4(e) and (iviii) ~~the~~ such Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which ~~New~~ NewIncremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each ~~New~~ Newwith respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made ~~thereunder~~ thereunderunder a New Revolving Credit Commitment (a “New Revolving Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (ccii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Credit Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Credit Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment or the Additional Revolving Credit Commitment, as applicable, and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, ~~to effect~~ the ~~provision~~ Swingline Lender and the Letter of ~~this Section 2.14.~~ Credit Issuers shall have consented (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans not to be ~~established, which shall be identical~~ unreasonably withheld or delayed) to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders Lender’s providing such ~~Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case,~~ Incremental Revolving Credit Commitment to the extent ~~provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any~~ such consent, if any, would be required under Section 13.6 for an assignment of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coLender.

Appears in 1 contract

Sources: Credit Agreement (Gardner Denver Holdings, Inc.)

Incremental Facilities. (a) ~~The~~ Either Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time after the Closing Date and prior to the Maturity Date, by notice to the Administrative Agent, request (x) in the case of the US Borrower, the establishment of one or more new Term A Commitments, (y) the establishment of one or more new Revolving Credit Commitments and/or (z) the addition of a new term loan facility (each an “Incremental Facility” and, in the case of any such new term loan facility to the European Borrower, a “European Incremental Facility”) pursuant to additional commitments (the “Incremental Commitments”) in an amount up to the sum of $100,000,000 (or the EuroAlternative Currency Equivalent thereof) in the aggregate to be effective as of a date that is at least 90 days prior to the scheduled Maturity Date (the “Increase Date”) as specified in the related notice to the Administrative Agent; provided, however, that (i) in no event shall any Incremental Facility be in a principal amount of less than $25,000,000 or the EuroAlternative Currency Equivalent thereof (or such lesser amount as shall be approved by the Administrative Agent) nor shall the aggregate amount of all Incremental Facilities and all Incremental Commitments exceed $100,000,000 (or ~~a portion~~ the EuroAlternative Currency Equivalent thereof); (ii) on the date of any request by such Borrower for an Incremental Facility and on the related Increase Date, the applicable conditions set forth in Section 4.02 and in clause (d) of this Section 2.14 shall be satisfied; (iii) on the Increase Date, after giving pro forma effect to such Incremental Facility, the US Borrower shall be in pro forma compliance with all financial covenants set forth in Section 6.18; (iv) on the Increase Date, after giving pro forma effect to such Incremental Facility, no Default or Event of Default shall have occurred and be continuing; (v) the final maturity and weighted average life to maturity of such Incremental Facility are equal to or greater than the final maturity and weighted average life to maturity of the Term ~~Loans~~ A Facility; (vi) if the interest rate margins in respect of ~~any Class~~ the new Incremental Facility exceeds the existing Applicable Rate of the Term A Facility (~~an “Existing~~ in the case of new commitments for the Term ~~Loan Class”~~A Facility or a new term loan facility) ~~be converted to extend~~ or the ~~scheduled maturity date(s) of any payment of principal~~ Revolving Credit Facility, as applicable, by more that 0.25% then the Applicable Rate with respect to the Term A Facility or the Revolving Credit Facility, as applicable, shall be automatically increased, effective on the Increase Date, to equal such interest rate margins in respect of the new Incremental Facility; (vii) such Incremental Facility is a new Facility (i.e., not on the same terms as any existing Facility) unless the requirements of Section 2.14(e) are satisfied, and the Collateral for any such new Facility (and priority thereof) are approved by the Required Lenders; (viii) all ~~or a portion~~ fees and expenses owing to the Administrative Agent and/or the Lenders in respect of such Incremental Facility shall have been paid; (ix) the principal purpose of any ~~principal amount~~ European Incremental Facility shall either be (A) to finance a Permitted Acquisition of a European Loan Party or property to be owned by a European Loan Party and the European Borrower shall comply (or be in a position to comply) in all material respects with the requirements of Section 6.10(a) with respect thereto (without regard to the provisions of Section 6.10(b)), or (B) such ~~Term Loans~~ other purpose as may be approved by the Required Lenders, (x) such Incremental Facility shall be on terms no more restrictive than those set forth in this Agreement and shall contain such other terms as may be agreed by the applicable Borrower and the Administrative Agent and shall benefit ratably from the Guaranty and from the Collateral Documents; and (xi) notwithstanding any ~~such Term Loans~~ other provision of any Loan Document (including, without limitation, Section 10.01), the Loan Documents may be amended by the Administrative Agent and the US Borrower, if necessary, without the consent of any Lender (except in the case of a new Facility, which ~~have been so converted~~shall require the consent of the Required Lenders), ~~“Extended Term Loans”) and~~ to provide for ~~other~~ terms applicable to each Incremental Facility consistent with the terms of this Section ~~2.14(f~~2.14. (b) If the Administrative Agent approves the terms of the Incremental Facility (which approval shall not be unreasonably withheld or delayed if such terms are otherwise in accordance with the provisions of this Agreement), the Administrative Agent shall promptly notify the Lenders of a request by the applicable Borrower for Incremental Commitments, which notice shall include (i) the proposed amount and other material terms of the Incremental Facility, (ii) the proposed Increase Date and (iii) the date by which Lenders wishing to participate in the Incremental Facility must commit to an Incremental Commitment (the “Commitment Date”). ~~In order~~ Each Lender that is willing to ~~establish any Extended Term Loans~~participate in the requested Incremental Facility (each an “Increasing Lender”) shall, ~~the Borrower shall provide a~~ in its sole discretion, give written notice to the Administrative Agent ~~(who shall provide a copy of such notice~~ on or prior to ~~each~~ the Commitment Date of the amount it is willing to commit to the Incremental Facility. If the Lenders notify the Administrative Agent that they are willing to participate in an Incremental Facility by an aggregate amount that exceeds the amount of the requested Incremental Commitments, the requested Incremental Commitments shall be allocated among the Lenders willing to participate therein in such amounts as are agreed between the applicable Borrower and the Administrative Agent. (c) Promptly following the applicable Commitment Date, the Administrative Agent shall notify the applicable Borrower as to the amount, if any, by which the Lenders are willing to participate in the requested Incremental Facility. If the aggregate amount by which the Lenders are willing to participate in the requested Incremental Facility on any such Commitment Date is less than the requested Incremental Commitments, then the US Borrower may extend offers to one or more Eligible Assignees to participate in any portion of the requested Incremental Facility that has not been committed to by the Lenders as of the Commitment Date; provided, however, that the Commitment of each such Eligible Assignee shall be in an amount equal to at least $1,000,000. (d) On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Incremental Facility in accordance with Section 2.14(c) (each such Eligible Assignee, an “Assuming Lender”) shall become a Lender party to this Agreement as of the applicable ~~Existing Term Loan Class~~Increase Date and the Commitment of each Increasing Lender for such Incremental Facility shall be so increased by such amount (or by the amount allocated to such Lender pursuant to the last sentence of Section 2.14(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have received on or before the Increase Date the following, each dated such date: (i) (~~a “Term Loan Extension Request”~~A) ~~setting forth the proposed terms~~ certified copies of resolutions of the ~~Extended Term Loans~~ Boards of Directors (or corresponding body) of the applicable Borrower and each Guarantor approving the Incremental Facility and the corresponding modifications to this Agreement and (B) an opinion of counsel for the Loan Parties, in a form reasonably satisfactory to the Administrative Agent; (ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the US Borrower and the Administrative Agent (each an “Assumption Agreement”), duly executed by such Eligible Assignee, the Administrative Agent, the US Borrower and, if applicable, the European Borrower; and (iii) confirmation from each Increasing Lender of the increase in the amount of its Commitment in a writing satisfactory to the US Borrower and the Administrative Agent. On the applicable Increase Date, upon fulfillment of the conditions set forth in the immediately preceding sentence of this Section 2.14(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the US Borrower, at or before 11:00 A.M., by telecopier or telex, of the occurrence of the Incremental Facility to be ~~established~~effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. (e) Notwithstanding anything to the contrary contained above, each Incremental Facility shall constitute a new Facility, which shall be ~~identical~~ separate and distinct from the existing Facilities pursuant to ~~the Term Loans of the Existing Term Loan Class from which they are to~~ this Agreement, provided that an Incremental Facility may constitute part of, and be ~~converted except~~ added to, an existing Facility, so long as: (xi) the ~~scheduled~~ advances made under the Incremental Facility shall have the same final maturity date ~~shall be extended~~ and ~~all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed~~ same weighted average life to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, maturity as the ~~case may be~~existing Facility to which the new Incremental Facility is being added, and shall bear interest at the same rates applicable to such Facility; (ii) the new Incremental Facility shall have the same scheduled repayment dates as then remain with respect to the ~~Existing Term Loan Class from~~ existing Facility to which such ~~Extended Term Loans were converted~~new Incremental Facility is being added, in with the amount of each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion scheduled repayment installment of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments new Incremental Facility to be ~~established, which terms shall be identical to those~~ the same (on a proportionate basis) as is theretofore applicable to the ~~Existing Revolving Credit Commitments from~~ existing Facility to which ~~they are to be extended~~ such new Incremental Facility is being added; and (iii) on the ~~“Specified Existing Revolving Credit Commitment”) except (x) all or any~~ date of the ~~final maturity dates~~ making of ~~such Extended Revolving Credit Commitments may be delayed to later dates than~~ advances under the ~~final maturity dates of the Specified Existing Revolving Credit Commitments~~new Incremental Facility, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in ~~this~~ Section ~~2.14(f) or otherwise~~2.07, ~~(1)~~ the ~~borrowing and repayment (other than in connection with a permanent repayment and termination~~ aggregate principal amount of ~~commitments) of Loans with respect to any Old Revolving Credit Commitments~~ such new advances shall be ~~made~~ added to (and form part of) each Borrowing of outstanding advances of the respective Facility on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing under the respective Facility, and so that the existing Lenders with ~~all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by~~ respect to such Facility continue to have the same ~~assignment and~~ participation ~~provisions applicable to Revolving Credit Commitments and~~ (by amount) in each Borrowing as they had before the ~~Revolving Credit Loans related to~~ making of the new advances under such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date)Facility. (f) To the extent the provisions of the preceding clause (iii) ~~The Borrower shall provide~~ require that Lenders making new advances under an Incremental Facility, add the aggregate principal amount of such new advances to the then outstanding Borrowings of Eurocurrency Rate Loans, it is acknowledged that the effect thereof may result in such new advances having short Interest Periods (i.e., an Interest Period that will began during an Interest Period then applicable to the outstanding Eurocurrency Rate Loans and which will end on the last day of such Interest Period). In connection therewith, the applicable ~~Extension Request at least ten (10) Business Days (or~~ Borrower may agree to compensate the Lenders making the advances under the new Incremental Facility for funding Eurocurrency Rate Loans during an existing Interest Period on such ~~shorter period~~ basis as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to between such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended Borrower and the ~~related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co~~respective Lender or Lenders.

Appears in 1 contract

Sources: Credit Agreement (Colfax CORP)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative Agent substantially in the form of Exhibit M hereto, and each Lender, elect to ~~request~~ request, prior to the ~~establishment~~ last day of ~~one or more~~ the Revolving Period, an increase to the existing Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term Loan~~ Commitments”) ~~and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together~~ by an amount with the ~~New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess~~ consent of ~~the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by~~ the Administrative Agent ~~or (y) shall constitute~~ in its sole discretion and subject to any internal approvals, which would increase the ~~difference between the Maximum Incremental Facilities~~ Facility Amount ~~and all such New Loan Commitments obtained on or prior~~ up to ~~such date)~~$400,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Commitments shall be ~~effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to~~ effective and approved in writing by the Administrative ~~Agent. The Borrower may approach any~~ Agent and (ii) the identity of each Lender or ~~any~~ other Person (~~other than a natural person~~each, an “Increasing Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New ~~Loan~~ Commitments be allocated and the amounts of such allocations (if then known). Such New Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (iA) no ~~Default or~~ Unmatured Event of Default, Event of Default or Borrowing Base Deficiency shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Commitments~~, as applicable~~; (~~ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~B) the New ~~Loan~~ Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender (if applicable), or one or more Joinder ~~Agreements~~ Supplements for any new Lender executed and delivered by the ~~Borrower~~ Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the Register and each new Lender shall be subject to the requirements set forth in Section ~~5.4(d~~2.10(g); (ivC) the Borrower shall ~~make~~ pay any ~~payments required pursuant to Section 2.11~~ applicable Breakage Fees in connection with the New ~~Loan~~ Commitments and shall pay any other required fees in connection with the New Commitments~~, as applicable~~; ~~and~~ (vD) the Borrower shall deliver or cause to be delivered any ~~legal opinions or other~~ customary closing documents (substantially consistent with the documents set forth in Section 3.01) reasonably requested by Administrative Agent or an Increasing Lender in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series~~ ; and (~~a “Series”~~E) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of ~~such new Loan~~ any allocation of New Commitments ~~in lieu~~ to a non-Lender shall be subject to the prior written consent of the ~~conditions set forth in clauses~~ Administrative Agent (inot to be unreasonably withheld, conditioned or delayed), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New ~~Revolving Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) each of the existing Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each~~of the Increasing Lenders, ~~a “New Revolving Loan Lender”)~~ and each of the ~~New Revolving Loan~~ Increasing Lenders shall purchase from each of the ~~Lenders with Revolving Credit Commitments~~existing Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the ~~Revolving Credit Loans outstanding~~ Advances Outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the Revolving Credit Loans~~ such Advances will be held by existing ~~Revolving Credit~~ Lenders and ~~New Revolving Loan~~ Increasing Lenders ratably in accordance with their ~~Revolving Credit~~ Commitments after giving effect to the addition of such New ~~Revolving Credit~~ Commitments to the ~~Revolving Credit~~ Commitments, (bii) each New ~~Revolving Credit~~ Commitment shall be ~~deemed~~ deemed, for all ~~purposes~~ purposes, a ~~Revolving Credit~~ Commitment and each ~~Loan~~ Advance made thereunder (a “New ~~Revolving Loan~~Advance”) shall be deemed, for all purposes, ~~a Revolving Credit Loan~~ an Advance and (ciii) each ~~New Revolving Loan~~ new Lender shall become a Lender with respect to the ~~New Revolving Credit Commitment~~ Commitments and all matters relating thereto. (c) ~~On any~~ The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date ~~on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms~~ and ~~conditions,~~ in respect thereof (i) ~~each Lender with a~~ the New ~~Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to~~ Commitments and the ~~Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series,~~ Increasing Lenders and (ii) in the case of each ~~New Term Loan Lender of~~ notice to any ~~Series shall become a Lender hereunder with respect~~ Lender, the respective interests in such L▇▇▇▇▇’s Advances, in each case subject to the ~~New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto~~assignments contemplated by this Section 2.21. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments Advances shall be identical to the ~~2020 Revolving Credit Loans~~ Advances. Each Assignment and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (Acceptance or ~~in the case of New Revolving Credit Commitments that are Refinancing Commitments~~each Joinder Supplement, ~~later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing~~ as ~~agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement~~ applicable, may, without the consent of any other Lenders, effect such amendments to this Agreement and the other ~~Credit~~ Transaction Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, and consented to by the Borrower (such consent not to be unreasonably withheld), to effect the ~~provision~~ provisions of this Section ~~2.14~~2.21. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Loan and Servicing Agreement (FS KKR Capital Corp)

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative ~~Agent~~ Agent, elect to request prior to the ~~establishment of one or more (x) additional tranches of term loans (~~Commitment Termination Date, an increase to the ~~commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in~~ then-existing Revolving ~~Credit~~ Commitments (~~the~~ any such increase, “New Revolving ~~Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan~~ Commitments”), by an ~~aggregate~~ amount not in excess of the ~~Maximum Incremental Facilities~~ Increase Amount ~~in the aggregate~~ at such time and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative Agent or ~~(y)~~ such lesser amount that shall ~~constitute~~ equal the ~~difference between the Maximum Incremental Facilities~~ Increase Amount at such time), and ~~all such New Loan Commitments obtained on or prior to such date)~~integral multiples of $1,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Revolving Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (B) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Loan Lender”) to ~~provide all or a~~ whom the Borrower proposes any portion of such New Revolving Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Commitments in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New ~~Loan~~ Revolving Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Commitment. ~~In each case, such~~ Such New ~~Loan~~ Revolving Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New ~~Loan~~ Revolving Commitments~~, as applicable~~; (ii2) ~~both before~~ all of the representations and warranties contained herein or in any Loan Document (other than the representations and warranties contained in Sections 5.05 and 5.11(c)) shall be true and correct in all material respects on and as of such Increased Amount Date to the same extent as though made on and as of such Increased Amount Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof, (3) Holdings and its Subsidiaries shall be in pro forma compliance with Sections 7.09 and 7.10 as of the last day of the most recently ended Fiscal Quarter after giving effect to ~~the making of any Series of New Term Loans or~~ such New Revolving ~~Loans, each of the conditions set forth in Section 7 shall be satisfied~~Commitments; (~~iii~~4) ~~the~~ all New ~~Loan~~ Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrower, the New Revolving Loan Lender and the Administrative Agent, ~~and~~ each of which shall be recorded in the Register and each New Revolving Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~3.01(e); (iv5) ~~the Borrower~~ Holdings shall make any payments required pursuant to Section ~~2.11~~ 3.04 in connection with the New ~~Loan~~ Revolving Commitments~~, as applicable~~; and (v6) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ai) (x) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Lenders, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date and (y) each outstanding Letter of Credit shall be amended in accordance with the procedures set forth in Section 2.02(d), in each case as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving ~~Credit Loans~~ Exposure will be held by then-existing Revolving ~~Credit~~ Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Commitments to the Revolving ~~Credit~~ Commitments, (bii) each New Revolving ~~Credit~~ Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (ciii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Commitment and all matters relating thereto~~. (c) On any Increased Amount Date on which any New Term Loan Commitments~~ . For the avoidance of ~~any Series are effective~~doubt, ~~subject to~~ the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving ~~Credit~~ Commitments shall be ~~identical~~ documented solely as an increase, and shall be identical, to the ~~2020~~ then-existing Revolving ~~Credit Loans and the 2020 Revolving Credit~~ Commitments~~; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date~~ . The Administrative Agent shall notify Lenders promptly upon receipt of the ~~2020 Revolving Credit Commitments (or~~ Borrower’s notice of each Increased Amount Date and in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except thereof (x) the ~~scheduled final maturity date shall be extended~~ New Revolving Commitments and ~~all or any of~~ the ~~scheduled amortization payments of principal of~~ New Revolving Loan Lenders, and (y) the ~~Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of~~ respective interests in such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted▇▇▇▇▇▇’s Revolving Loans, in each case ~~as more particularly set forth in paragraph (iv) of~~ subject to the assignments contemplated by this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted2.15. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (KKR & Co. Inc.)

Incremental Facilities. (a) ~~The Borrower may by written notice~~ At any time during the period from and after the Closing Date through but excluding the date that is the four-year anniversary of the Closing Date, at the option of Borrowers (but subject to ~~Administrative~~ the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum 83 125672876_9 (b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount: (i) Agent ~~elect to request~~ or Borrowers have obtained the ~~establishment~~ commitment of one or more Lenders (xor other prospective lenders who are Eligible Transferees or otherwise reasonably satisfactory to Agent and Borrowers) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (or such prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, (ii) each of the conditions precedent set forth in Section 3.2 are satisfied, (iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional ~~tranches of term loans (~~originals thereof for each Lender), duly executed and delivered by the ~~commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and~~Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the ~~New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess~~ Lenders to comply with any of the ~~Maximum Incremental Facilities Amount in~~ requirements under Regulations T, U or X of the ~~aggregate and not less than $100,000,000 individually~~ Federal Reserve Board, (~~or such lesser amount as (x~~iv) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is Borrowers have delivered to ~~the Administrative Agent. The Borrower may approach any Lender or any Person~~ Agent updated pro forma Projections (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the ~~making of any Series of New Term Loans or New Revolving Loans, each~~ applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agentapplicable Increase, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender The interest rate margins with respect to the ~~New~~ Revolving ~~Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject~~ Loans to be made pursuant to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit increased Revolver Commitments shall be ~~identical~~ the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the ~~2020 Revolving Credit Loans and~~ applicable Increase Date (as defined below). Any Increase Joinder may, with the ~~2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date~~ consent of ~~the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments~~Agent, ~~later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower~~ Borrowers and the Lenders ~~providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without~~ or prospective lenders agreeing to the ~~consent of any other Lenders~~proposed Increase, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary ~~or appropriate, in~~ to effectuate the ~~opinion of the Administrative Agent, to effect the provision~~ provisions of this Section 2.14. (c) Unless otherwise specifically provided herein, (i) ~~The Borrower may at~~ all references in this Agreement and any ~~time~~ other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolver Commitments and ~~from time~~ Maximum Revolver Amount pursuant to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f)~~2.14. ~~In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent~~ (~~who shall provide a copy of such notice to each~~ d) Each of the Lenders ~~of the applicable Existing Term Loan Class) (~~having a ~~“Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical~~ Revolver Commitment prior to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended Increase Date (the “~~Specified Existing Revolving Credit Commitment~~Pre-Increase Revolver Lenders”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect shall assign to any ~~Old Revolving Credit Commitments shall be made on~~ Lender which is acquiring a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans new or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit additional Revolver Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the ~~amount of Term Loans~~Increase Date (the “Post-Increase Revolver Lenders”), ~~Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each~~ and such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co84 125672876_9

Appears in 1 contract

Sources: Credit Agreement (Nautilus, Inc.)

Incremental Facilities. (a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, ~~which~~ at the request of the Administrative Agent, the Borrower shall ~~be a date not less than ten Business Days after the date on which such notice is delivered~~ provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) of the definition of Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount ~~Date~~Date (subject to Section 1.12); provided that (i) no ~~Default or~~ Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; , and subject to Section 1.12, (ii~~) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , and (iviii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date ~~shall~~ shall, at the election of the Borrower and agreed to by the Lenders providing such New Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that~~ Agreement or (Ab) if part of a Series of existing Term Loans. On and after the ~~use~~ Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of ~~proceeds~~ Additional Revolving Credit Loans for all purposes of ~~such New Loan Commitments is an acquisition or investment permitted under~~ this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which ~~New~~ Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit ~~Commitments~~Commitments of such Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each ~~New~~ Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment ~~and~~ and, each Loan made ~~thereunder~~ under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit ~~Loan~~ Loans and (cii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall ~~be, except as otherwise~~ be on terms and documentation set forth ~~herein or~~ in the ~~applicable~~ Joinder ~~Agreement, identical to one or more Classes of~~ Agreement as determined by the ~~existing Initial Term Loans~~Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New~~ Initial Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, Date; (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with the Initial Term Loans; provided that clauses (i) and (ii) shall not apply to up to the greater of (x) $151,500,000 and (y) 50% of Consolidated EBITDA for the most recently ended Test Period of New Term Loans as elected by the Borrower (or the “Maturity Carveout Amount”); (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that solely in the case of New Term Loans incurred prior to the 24 month anniversary of the Sixth Amendment Effective Date, if the Effective Yield for Term Benchmark Loans or ABR Loans in respect of such New Term Loans consisting of Term Loans that are ~~Refinancing Commitments, no shorter than that~~ secured by the Collateral on a pari passu basis with the Initial Term Loans exceeds the Effective Yield for Term Benchmark Loans or ABR Loans in respect of the then existing Initial Term Loans ~~being refinanced) and (iii) all other terms applicable~~ by more than 0.50%, the Applicable Margin for Term Benchmark Loans or ABR Loans in respect of the then existing Initial Term Loans is equal to the Effective Yield for Term Benchmark Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the terms of ~~each Series~~ this proviso to this clause (iii), the “MFN Protection”); provided further that ~~differ from~~ the ~~existing~~ MFN Protection shall not apply to (i) up to the greater of (x) $151,500,000 million and (y) 50% of Consolidated EBITDA for the most recently ended Test Period of New Term Loans as elected by the Borrower of New Term Loans or Permitted Other Indebtedness (as selected by the Borrower), (ii) any New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, (iii) any New Term Loans incurred pursuant to clause (i) of the definition of Maximum Incremental Facilities Amount and (iv) any New Term Loan which mature later than the date that is one year after the Initial Term Loan Maturity Date; and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the ~~applicable Joinder Agreement). The terms and provisions~~ Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the ~~New Revolving Loans and New~~ Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the ~~2020~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the ~~2020~~ Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments; , (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that ~~New~~ the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may ~~provide for (a)~~ constitute a ~~commitment termination date that is later than~~ separate Class or Classes, as the ~~commitment termination date~~ case may be, of Commitments from the ~~2020~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, (~~or in~~ viii) the ~~case~~ pricing, fees, maturity and other immaterial terms of ~~New~~ the Additional Revolving Credit ~~Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced)~~ Loans may be different and ~~(b) fees and pricing as agreed between~~ shall be determined by the Borrower and the Lenders ~~providing such New~~ thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans, and (ix) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness. (ef) Each Joinder Agreement may, without the consent of any other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section ~~2.14(f~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan ~~Class~~Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be ~~identical~~ materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class ~~from which they are to be converted except~~ unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (BrightView Holdings, Inc.)

Incremental Facilities. ~~(a) The~~ Borrower may by written notice to Administrative Agent elect to ~~request~~ request, prior to the ~~establishment~~ Revolving Commitment Termination Date, an increase to the existing Revolving Commitments in an aggregate amount not to exceed $125,000,000 during the term of ~~one or more~~ this Agreement (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “New ~~Term~~ Revolving Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the~~ Borrower proposes that the New Revolving Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to Administrative Agent or such shorter period of time as consented to by Administrative Agent (B) the ~~Administrative Agent. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion~~ amount of the New Revolving Loan ~~Commitments~~Commitments (which amount shall be at least $5,000,000) and (C) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender”) to whom Borrower proposes any portion of such New Revolving Loan Commitments be allocated and the amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such New Revolving Loan Commitments in its sole discretion and any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment; provided, further, that, if the consent of the Administrative Agent, each Issuing Bank and each Swing Line Lender would be required pursuant to the terms of Section 10.07, each Lender and other Person that the Borrower proposes to become a New Revolving Loan Lender must be reasonably acceptable to Administrative Agent, each Issuing Bank and each Swing Line Lender (the consent of each of the Administrative Agent, each Issuing Bank and each Swing Line Lender not to be unreasonably withheld, conditioned or delayed). ~~In each case, such~~ Such New Revolving Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no ~~Default or~~ Specified Event of Default shall exist on at the time of, or result after giving effect to, such Increased Amount Date ~~before or after~~ by giving effect to such New Revolving Loan Commitments~~, as applicable~~; (~~ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii~~2) the New Revolving Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the ~~Borrower~~ New Revolving Loan Lender, and Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d~~3.01(3); (iv3) ~~the~~ Borrower shall make any payments required pursuant to Section ~~2.11~~ 3.04 in connection with the New Revolving Loan Commitments~~, as applicable~~; and (v4) ~~the~~ Borrower shall deliver or cause to be delivered any legal ~~opinions~~ opinions, mortgage amendments (including updated and increased title insurance amount), notes or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Loan Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto~~. (c) On any~~ . Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date ~~on which any~~ and in respect thereof (y) the New ~~Term~~ Revolving Loan Commitments ~~of any Series are effective, subject to~~ and the ~~satisfaction of the foregoing terms and conditions, (i) each Lender with a~~ New ~~Term~~ Revolving Loan ~~Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series~~Lenders, and (iiz) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of ~~New Term Loans that are Refinancing Commitments~~each notice to any Revolving Loan Lender, ~~no earlier than that of~~ the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical~~respective interests in such Revolving Loan Lender’s Revolving Loans, ~~(ii) the fees, pricing and the amortization schedule applicable~~ in each case subject to the ~~New Term Loans of each Series shall be determined~~ assignments contemplated by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement)this Section 2.15. The terms and provisions of the New Revolving Loans ~~and New Revolving Credit Commitments~~ shall be identical to the ~~2020~~ Revolving ~~Credit~~ Loans; provided that if the Borrower determines to increase the Applicable Margin or fees payable in respect of the New Revolving Loan Commitments, such increase shall be permitted if the Applicable Margin or fees payable in respect of all Revolving Commitments and Revolving Loans ~~and~~ shall be increased to equal such Applicable Margin or fees payable in respect of the ~~2020~~ New Revolving ~~Credit~~ Loan Commitments; provided further that the Borrower at its election may pay arrangement, upfront or closing fees with respect to any New Revolving ~~Credit~~ Loan Commitments ~~may provide for (a) a commitment termination date that is later than~~ without paying such fees with respect to the ~~commitment termination date of the 2020~~ existing Revolving ~~Credit Commitments (or in the case of~~ Commitments. New Revolving ~~Credit~~ Loan Commitments ~~that are Refinancing Commitments~~shall become Commitments under this Agreement pursuant to an amendment to this Agreement and, ~~later than~~ as appropriate, the ~~commitment termination date of~~ other Loan Documents, executed by the Borrower, each New Revolving ~~Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders~~ Loan Lender providing such New Revolving ~~Credit Commitments. (e) Each Joinder Agreement~~ Loan Commitments and the Administrative Agent. Such amendment may, without the consent of any other ~~Lenders~~Loan Party, Agent or Lender, effect such amendments to this Agreement and the other ~~Credit~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent~~Agent and the Borrower, to effect the ~~provision~~ provisions of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f)2.15. In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (connection with any such ~~delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement~~amendment, ~~as the case may be~~Borrower shall, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed if reasonably requested by the Administrative Agent~~) prior~~ , deliver customary reaffirmation agreements and/or such amendments to the ~~date on which Lenders under the applicable Existing Class or Existing Classes are~~ Collateral Documents as may be reasonably requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify by the Administrative Agent ~~(an “Extension Election”) on or prior~~ in order to ensure that such New Revolving Loan Commitments are provided with the ~~date specified in such Extension Request~~ benefit of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be coLoan Documents.

Appears in 1 contract

Sources: Abl Credit Agreement (United States Steel Corp)

Incremental Facilities. (a) ~~The~~ On or after the Seventh Amendment Effective Date (and, with respect to any New Revolving Credit Commitments, prior to the Revolving Credit 1 Termination Date), the Borrower may by written notice to the Administrative Agent ~~elect~~ request (i) an increase to ~~request~~ the existing Revolving Credit 1 Commitments (any such increase, the “New Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by in an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $300,000,000 in the aggregate and not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative ~~Agent~~ Agent) or ~~(y)~~ an integral multiple of $5,000,000 in excess thereof; provided, that any Loans or Commitments provided pursuant to the Seventh Amendment shall ~~constitute the difference between the Maximum Incremental Facilities Amount and all such~~ not be treated as New Term Loan Commitments ~~obtained on or prior to such date)~~for any purpose hereunder. Each such notice shall ~~specify~~ set forth (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Revolving Credit Commitments or New Term Loan ~~Commitments~~ Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ 5 Business Days after the date on which such notice is delivered to the Administrative Agent~~. The Borrower may approach any~~ ; (B) the identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Credit Lender” or “New Term Loan Lender”, as applicable) to ~~provide all or a~~ whom the Borrower proposes any portion of ~~the~~ such New Revolving Credit Commitments or New Term Loan Commitments; , as applicable, be allocated and the amounts of such allocations (provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Credit Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Credit Commitment or a New Term Loan Commitment) and (C) to the extent any Additional First Lien Mortgage Notes, Additional 2020 Notes, 2020 Notes, 2014 Notes or Senior Secured Notes remain outstanding, a certification by the Borrower that the establishment of the New Revolving Credit Commitments and/or the New Term Loan Commitments, as applicable, does not violate any provisions of any Additional First Lien Mortgage Notes Indenture, Additional 2020 Notes Indenture, 2020 Notes Indenture, 2014 Notes Indenture or the Senior Secured Notes Indenture, or has otherwise been consented to by any party whose consent is required by the terms thereof. ~~In each case, such~~ The establishment of the New Revolving Credit Commitments and New Term Loan Commitments shall ~~become effective as of~~ be subject to the ~~applicable Increased Amount Date; provided that~~ following conditions: (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 5.2 or 5.3, as applicable, shall be satisfied; (~~iii~~3) to the ~~New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by~~ extent applicable, the Borrower and ~~Administrative Agent, and~~ its Subsidiaries shall be in pro forma compliance with each of ~~which shall be recorded in~~ the ~~Register and shall be subject to the requirements~~ covenants set forth in Section ~~5.4(d); (iv)~~ 7.1 as of the most recent Quarterly Date of the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving pro forma effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any or New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitmentsfully drawn, as applicable, on ~~a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each~~ such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be codate;

Appears in 1 contract

Sources: Credit Agreement (Wynn Las Vegas LLC)

Incremental Facilities. ~~(a)~~ The Parent Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (including on a delayed draw basis) (the commitments thereto, the “New Term Loan Commitments”~~) and/or~~ ), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $~~100,000,000~~ 10,000,000 (or the Dollar Equivalent thereof) individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date ~~(each, an “Increased Amount Date”)~~ on which the Parent Borrower proposes that the New Loan Commitments shall be ~~effective~~effective (the effective date, the “Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (which shall be ~~a date not less than ten Business Days after the date on~~ deemed to apply to New Term Loan Commitments, mutatis mutandis)) to which such ~~notice is delivered~~ New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. Subject to Section 1.11(c), in connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Parent Borrower shall provide to the Administrative ~~Agent~~Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The ~~Borrower~~ Borrowers may approach any Lender or any Person (other than a natural ~~person~~Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) (A) subject to Section 1.11(c), no ~~Default or~~ Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as ~~applicable;~~ applicable and (iiB) ~~both before and~~ after giving effect to such New Loan Commitments, the ~~making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth~~ condition in Section 7 7.1(b) shall be ~~satisfied~~satisfied (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, further, that the lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) for all purposes hereunder, (~~iii~~ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Parent Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~5.4(e); , (iii) the New Loan Commitments (x) shall not be incurred or guaranteed by any Subsidiary other than any Credit Party and (y) if secured, shall not be secured by any assets other than the Collateral and (iv) the ~~Borrower~~ Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable~~; and (v) the Borrower~~ . No Lender shall ~~deliver or cause~~ have any obligation to ~~be delivered~~ provide any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~Commitments pursuant to this Section 2.14(a). Any #96533218v9 New Term Loans ~~made on an Increased Amount Date shall~~ shall, at the election of the Parent Borrower and agreed to by Lenders providing such New Term Loan Commitments, be ~~designated,~~ designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this ~~Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition~~ Agreement or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) ~~On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction~~ as part of ~~the foregoing terms and conditions, (a) each~~ a Series of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit existing Term Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes ~~a Revolving Credit Commitment~~ of this Agreement. On and ~~each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to~~ after the ~~New Revolving Credit Commitment and all matters relating thereto. (c) On any~~ Increased Amount ~~Date on which any New Term Loan Commitments of any Series are effective~~Date, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Additional Revolving Credit Loans shall be ~~governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the~~ designated a separate Series of Additional Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have for all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be cothis Agreement.

Appears in 1 contract

Sources: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. (a) ~~The Borrower~~ Company may by written notice to ~~Administrative Agent~~ GSCP elect to request (A) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Loan Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (B) the establishment of one or more new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”~~) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”~~), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $100,000,000 in the aggregate and not less than $~~100,000,000~~ 5,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent and GSCP or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $100,000,000 and all such New Revolving Loan Commitments and New Term Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~the Borrower~~ Company proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ (ten) 10 Business Days after the date on which such notice is delivered to GSCP and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~“New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to ~~provide all or a~~ whom Company proposes any portion of ~~the~~ such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment or a New Term Loan Commitment. ~~In each case, such~~ Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the making of any New Revolving Loan or Series of New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.2 shall be satisfied; (~~iii~~3) Company and its Subsidiaries shall be in compliance with each of the covenants set forth in Section 6.6 on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter after giving effect to any Loans made pursuant to such New Revolving Loan Commitments on the Increased Amount Date or New Term Loan Commitments, as applicable and after giving effect to use of proceeds thereof; (4) the Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter after giving effect to any Loans made pursuant to such New Revolving Loan Commitments on the Increased Amount Date or New Term Loan Commitments, as applicable and after giving effect to use of proceeds thereof, shall be the Leverage Ratio as set forth for such Fiscal Quarter in Section 6.6(b) minus 0.25; (5) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by ~~the Borrower~~ Company, and GSCP, Administrative Agent, ~~and~~ each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.20(c) and Section 2.20(d); (iv6) ~~the Borrower~~ Company shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable; and (v7) ~~the Borrower~~ Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders ~~with Revolving Credit Commitments~~ shall assign to each ~~Lender with a New Revolving Credit Commitment (each, a “~~of the New Revolving Loan ~~Lender”)~~ Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the ~~Lenders with~~ Revolving ~~Credit Commitments~~Loan Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving ~~Credit~~ Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving ~~Credit~~ Loans will be held by existing Revolving ~~Credit~~ Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving ~~Credit~~ Loan Commitments after giving effect to the addition of such New Revolving ~~Credit~~ Loan Commitments to the Revolving ~~Credit~~ Loan Commitments, (b) each New Revolving ~~Credit~~ Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Loan Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving ~~Credit~~ Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”)~~ Lender of any Series shall make a Loan to ~~the Borrower~~ Company (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (z) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.25. (e) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one or more Classes~~ the Tranche D Term Loans. The terms and provisions of the ~~existing Initial Term~~ New Revolving Loans shall be identical to the Revolving Loans~~; provided that~~ . In any event (i) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Tranche D Terms Loans, (ii) the applicable New Term Loan Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ final maturity of the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New~~ Tranche D Term Loans and ~~the existing Term Loans shall be identical,~~ (iiiii) the ~~fees, pricing and the amortization schedule~~ interest rate margins applicable to the New Term Loans of each Series shall be determined by ~~the Borrower~~ Company and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the 2018B Second New Term Loans (or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced) and (iii) all other terms interest rate applicable to the New Term Loans ~~of each Series that differ from the existing Term Loans~~ shall not be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later greater than the ~~commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments~~ highest interest rate that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, ~~without the consent of~~ under any ~~other Lenders~~circumstances, ~~effect such amendments to this Agreement and the other Credit Documents as may~~ be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal payable with respect to ~~all or a portion of any principal amount of such~~ Tranche D Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) plus 0.50% per annum unless the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the ~~Extended Revolving Credit Commitments may~~ Tranche D Term Loan is increased so as to be ~~higher~~ equal to or be 0.50% per annum lower ~~than~~ than, the ~~Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case,~~ interest rate applicable to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its New Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Simmons Co)

Incremental Facilities. (a) The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more (x) ~~additional tranches of term loans~~ New Term Loan commitments (~~the commitments thereto,~~ the “New Term Loan Commitments”) and/or (y) ~~increases in Revolving Credit Commitments~~ additional revolving credit commitments (the “New Revolving Credit ~~Commitments~~Commitment” and, together with the New ~~Term~~ Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $150,000,000 in the aggregate and not less than $~~100,000,000~~ 25,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between ~~the Maximum Incremental Facilities Amount~~ $150,000,000 and all such New Loan Commitments obtained ~~on or~~ prior to such date), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days after the date on which such notice is delivered to the Administrative Agent~~. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments~~; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. ~~In each case, such~~ Such New Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the Borrower and its Subsidiaries shall be in pro forma compliance with the covenants set forth in Section 10.9 and Section 10.10 as of the last day of the most recently ended fiscal quarter after giving effect to such New Loan Commitments and such other adjustment events in connection with any concurrent Permitted Acquisitions or Dispositions; (iv) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (ivv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (vvi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving ~~Credit~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and ~~conditions~~conditions and obtaining any required approval from any Governmental Authority, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving Credit Loans will be held by existing Lenders with Revolving Credit ~~Lenders~~ Loans and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the ~~applicable~~ Joinder Agreement, identical to ~~one~~ the Term Loans or ~~more Classes of~~ as otherwise agreed by the ~~existing Initial~~ Borrower and the New Term ~~Loans~~Loan Lenders; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that~~ final maturity of the Term Loans ~~being refinanced)~~ and the mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the ~~existing~~ Term Loans shall be ~~identical,~~ identical and (ii) the ~~fees, pricing~~ rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided further that to the ~~weighted average life to maturity~~ extent the terms and provisions of ~~all~~ the New Term Loans ~~shall be no shorter than the weighted average life to maturity of the 2018B Second~~ and New Term ~~Loans (or in the case~~ Loan Commitments of ~~New Term Loans that~~ any Series are ~~Refinancing Commitments, no shorter than that~~ not consistent with those of the Term Loans ~~being refinanced~~(other than as contemplated by the preceding clauses (i) and (~~iii) all other~~ ii)), such terms ~~applicable to the New Term Loans of each Series that differ from the existing Term Loans~~ and provisions shall be reasonably ~~acceptable~~ satisfactory to the Administrative ~~Agent (as evidenced by its execution of the applicable Joinder Agreement)~~Agent. The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the ~~2020~~ Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14. (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit Agreement (Serena Software Inc)

Incremental Facilities. ~~(a) The Borrower~~ Company may by written notice to ~~Administrative~~ Syndication Agent elect to request the establishment of ~~one or more (x) additional tranches of~~ new term ~~loans~~ loan commitments (the ~~commitments thereto~~"NEW TERM LOAN COMMITMENTS") on one occasion, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the ~~aggregate and not less than~~ amount of $~~100,000,000 individually~~ 25.0 million (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent ~~or (y) shall constitute the difference between the Maximum Incremental Facilities Amount~~ and ~~all such New Loan Commitments obtained on or prior to such date~~Syndication Agent). ~~Each such~~ Such notice shall specify (A) the date (~~each, an “Increased Amount Date”~~the "INCREASED AMOUNT DATE") on which ~~the Borrower~~ Company proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Syndication Agent and (B) the ~~Administrative Agent. The Borrower may approach any~~ identity of each Lender or ~~any~~ other Person that is an Eligible Assignee (~~other than~~ each, a ~~natural person~~"NEW TERM LOAN LENDER") to ~~provide all or a~~ whom Company proposes any portion of such New Term Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any Lender ~~offered or~~ approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. ~~In each case, such~~ Such New Term Loan Commitments shall become effective as of the ~~applicable~~ Increased Amount Date; provided that (i1) no Default or Event of Default shall exist on ~~such~~ the Increased Amount Date before or after giving effect to such New Term Loan Commitments~~, as applicable~~; (ii2) both before and after giving effect to the making of any ~~Series of~~ New Term ~~Loans or New Revolving~~ Loans, each of the conditions set forth in Section 7 3.2 shall be satisfied; (~~iii~~3) Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.8 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Term Loan Commitments; (4) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by ~~the Borrower~~ Company, Syndication Agent and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section ~~5.4(d~~2.17(c); (iv5) ~~the Borrower~~ Company shall make any payments required pursuant to Section ~~2.11~~ 2.15(c) in connection with the New Term Loan Commitments~~, as applicable~~; ~~and~~ (v6) ~~the Borrower~~ Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~. Any New Term Loans made on an Increased Amount Date~~ ; and (7) Administrative Agent shall have received a Borrowing Base Certificate, which shall be ~~designated~~in form and substance reasonably satisfactory to Administrative Agent and which shall confirm that, on a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if the use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower and the New Revolving Loan Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to the effectiveness of such new Loan Commitments in lieu of the conditions set forth in clauses (i), (ii) and if applicable, (v), above and (B) if such New Loan Commitments are being used to replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order thatpro forma basis, after giving effect to ~~all such assignments and purchases~~the New Term Loans requested on the applicable Credit Date, the ~~Revolving Credit Loans will be held~~ Borrowing Base then in effect shall exceed an amount equal to (A) 1.25 multiplied by ~~existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to~~ (B) the ~~addition~~ outstanding principal amount of ~~such New Revolving Credit Commitments to~~ the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to Loans. On the ~~New Revolving Credit Commitment and all matters relating thereto. (c) On any~~ Increased Amount Date on which any New Term Loan Commitments ~~of any Series~~ are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~Lender with a~~ New Term Loan ~~Commitment (each, a “New Term Loan Lender”) of any Series~~ Lender shall make a Loan to ~~the Borrower~~ Company (a ~~“New Term Loan”~~"NEW TERM LOAN") in an amount equal to its New Term Loan ~~Commitment of such Series~~Commitment, and (ii) each New Term Loan Lender ~~of any Series~~ shall become a Lender hereunder with respect to the New Term Loan Commitment ~~of such Series~~ and the New Term Loans ~~of such Series~~ made pursuant thereto~~. (d)~~ . Administrative Agent shall notify the Lenders promptly upon receipt of Company's notice of the Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders, subject to the assignments contemplated by this Section. The terms and provisions of the New Term ~~Loans and New Term~~ Loan Commitments ~~of any Series~~ shall be, except as otherwise set forth herein or in ~~the applicable~~ any Joinder Agreement, identical to ~~one or more Classes of~~ the ~~existing Initial~~ Tranche B Term Loans~~; provided that~~ . In any event (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the 2018B Second New Term Loan Maturity Date (or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the fees, pricing and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the ~~2018B Second~~ Tranche B Terms Loans, (ii) the New Term ~~Loans (or in the case of New Term Loans that are Refinancing Commitments,~~ Loan Maturity Date shall be no shorter than ~~that~~ the final maturity of the Tranche B Term ~~Loans being refinanced) and~~ Loans, (iii) ~~all other terms~~ the rate of interest applicable to the New Term Loans of shall be determined by Company and the applicable new Lenders and shall be set forth in each ~~Series~~ applicable Joinder Agreement; provided however that ~~differ from~~ the ~~existing~~ interest rate applicable to the New Term Loans shall not be ~~reasonably acceptable~~ greater than the interest rate payable with respect to Tranche B Term Loans unless the interest rate with respect to the ~~Administrative Agent (~~Tranche B Term Loans is increased so as ~~evidenced by its execution of~~ to equal the interest rate applicable ~~Joinder Agreement). The terms and provisions of~~ to the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or in the case of New Revolving Credit Commitments that are Refinancing Commitments, later than the commitment termination date of the Revolving Credit Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments. (e) Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of ~~the~~ Syndication Agent and Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14. (i) The Borrower may at~~ 2.20. This Section 2.20 shall supersede any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this provisions in Section ~~2.14(f). In order to establish any Extended Term Loans, the Borrower shall provide a notice~~ 10.5 to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were convertedcontrary. (ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(f). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (iii) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Sanmina-Sci Corp)

Common use of Incremental Facilities Clause in Contracts