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 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~~ 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~~ 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 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 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 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~~ 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 (A) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (any such increase, the “New Revolving Loan Commitment Increases”) or the establishment of one or more new Revolving Commitments (xany such new commitments, “New Incremental Revolving Loan Commitments” and, collectively with any New Revolving Loan Commitment Increases, the “New Revolving Loan Commitments”) ~~additional tranches~~ and/or (B) prior to the Maturity Date, an increase to the existing Term Loans or the establishment of one or more 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”~~), by ~~an aggregate amount not in excess of~~ the ~~Maximum~~ Available Incremental ~~Facilities Amount in the aggregate~~ Amount, and not less than $~~100,000,000~~ 5,000,000 (or, with respect to any New Revolving Loan Commitments to be established in an Alternative Currency, the Dollar Amount equivalent) individually (or such lesser amount ~~as (x) may~~ which shall reasonably be approved by ~~the~~ Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between the ~~Maximum~~ Available Incremental ~~Facilities~~ Amount and all such New Revolving Loan Commitments and New Term Loan Commitments obtained ~~on or~~ prior to such date). , and integral multiples of $1,000,000 or, with respect to any New Revolving Loan Commitments to be established in an Alternative Currency, the Dollar Amount equivalent) in excess of that amount. (b) Each such notice shall ~~specify~~ 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~~ 3 Business Days after the date on which such notice is delivered to ~~the~~ Administrative Agent or such shorter period of time as reasonably consented to by Administrative Agent~~. The Borrower may approach any~~ , (B) whether or not such New Revolving Loan Commitments or New Term Loan Commitments are incurred under the Available Incremental Amount and (C) 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 each Arranger may elect or decline to arrange such New Revolving Loan Commitments or New Term Loan Commitments in its sole discretion (it being understood that this proviso shall not require the Borrower to engage any Arranger as an arranger with respect thereto) 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~~Notwithstanding anything to the contrary herein, the aggregate amount of New Term Loans, when added to the aggregate amount of New Incremental Revolving Loan Commitments and any Additional Permitted Debt incurred on or prior to the date of incurrence of such New Term Loans and/or New Incremental Revolving Loan Commitments, as applicable, shall not exceed the Available Incremental Amount. (c) Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided ~~that~~ that: (i1) no Default or Event of Default (except in the case of a Permitted Acquisition or Investment, no Event of Default under Section 8.1(a), (f) or (g)) 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; (2) as of such Increased Amount Date, the representations and warranties contained herein and in the other Credit Documents 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 that 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 (i) 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 and (ii) ~~both before and after giving effect to~~ solely in the ~~making~~ case of ~~any Series of~~ a New ~~Term Loans~~ Loan in connection with a Permitted Acquisition or ~~New Revolving Loans~~other Investment permitted hereunder, ~~each of the conditions set forth in Section 7~~ such requirement shall be ~~satisfied;~~ subject to customary “Sungard” limitations; (~~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 the ~~Borrower~~ Borrower, the 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); ; (iv4) 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~~ ; (v5) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the New Revolving Loan Lender(s), New Term Loan Lender(s) or Administrative Agent in connection with any such transaction. ~~Any~~ As determined by the Administrative Agent, 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~~ and (A6) ~~if the use of proceeds of~~ such ~~New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower~~ new Term Loans 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~~be subject to any Guaranty by any affiliate of a Credit Party unless such Person also Guaranties the Obligations and shall not be secured by any Collateral that does not secure the Term Loans. (bd) 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 Increase shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “New Revolving Loan Increase”) shall be deemed, for all purposes, a Revolving Loan, (c) each New Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each Loan made thereunder (a “New Incremental Revolving Loan” and, together with any New Revolving Loan Increase, 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. (ce) 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” and, together with any New Revolving Loan, a “New 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. (df) Administrative Agent shall notify Lenders promptly upon receipt of the 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 Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24. (g) The terms and provisions of the New Revolving Loan Increases shall be identical to the Revolving Loans. (h) The terms and provisions of the New Incremental Revolving Loans and New Revolving Loan Commitment Increases of any Series shall be as set forth herein or in the Joinder Agreement. In any event (i) the applicable Maturity Date of each Series shall be no shorter than the latest of the Latest Maturity Date and no mandatory commitment reductions shall be required prior to the Latest Maturity Date of the Revolving Loans and (ii) any terms of any New Incremental Revolving Loans and New Incremental Revolving Loan Commitments that are more restrictive than the terms of the Revolving Loans must be either (x) reasonably acceptable to the Administrative Agent or (y) incorporated in the Credit Documents (which may be done only with the consent of the Administrative Agent in its reasonable discretion without the need for consent by any Lender) for the benefit of the existing Lenders. (i) 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~~ . In any event: (i) subject to the Inside Maturity Exception, the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the remaining weighted average life to maturity of the Initial Term Loans and any existing New Term Loans (whichever is longest), (ii) subject to the Inside Maturity Exception, the applicable ~~New Term Loan~~ Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan~~ Latest Maturity Date (or or, in the case of ~~New Term Loans that are Refinancing Commitments~~unsecured, subordinated or junior secured Indebtedness, such Series shall mature no earlier than ~~that~~ 91 days after the Latest Maturity Date of the Initial Term ~~Loans being refinanced) and mandatory prepayment rights~~ Loans), (~~other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii~~iii) the ~~fees~~pricing, ~~pricing~~ interest rate margins, discounts, premiums, rate floors, fees 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~~ provided, however, that if incurred solely within the ~~weighted average life~~ 6-month period following the Effective Date, the All-in Yield applicable 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~~ Qualified Term Loans and incurred under any of the Incremental Ratio Tests (or any other applicable leverage based tests under Section 6.1 permitting the incurrence of pari passu Indebtedness) shall not be greater than the applicable All-in Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans ~~being refinanced) and (iii) all other terms~~ plus 0.75% per annum unless the interest rate with respect to the Initial Term Loan is increased so as to cause the then applicable All-in Yield under this Agreement on the Initial Term Loans to equal the All-in Yield then applicable to the New Term Loans less 0.75%; provided that the foregoing shall not apply to New Term Loans that (1) are incurred in connection with a Permitted Acquisition or other Investments, (2) are scheduled to mature more than two years after the Maturity Date of ~~each Series that differ from~~ the ~~existing~~ Initial Term Loans or (3) in the aggregate, do not exceed the greater of (x) $542,000,000 and (y) 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (the “MFN Provision”), (iv) any mandatory prepayment (other than any scheduled amortization payment) of New Term Loans shall be made on a pro rata basis with such existing Initial Term Loans, except that the Borrower and the lenders providing the relevant New Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (v) any voluntary prepayment of New Term Loans may provide for the ability to participate on a pro rata basis or non-pro rata basis in any voluntary prepayments of any other Term Loans; and (vi) the New Term Loans may otherwise have terms and conditions different from those of the Initial Term Loans (including currency denomination); provided further, that, if such terms and conditions are not substantially consistent with the terms of the then existing Term Loans, except with respect to matters contemplated by clauses (i) – (v) above, any differences shall (1) reflect market terms at the time of incurrence or issuance thereof (as determined by the Borrower and the lenders or financing sources providing the applicable Indebtedness) or (2) be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ including, without limitation, to (i) add covenants and other provisions applicable only to the periods after the Latest Maturity Date applicable to the then-existing Initial Term Loans (it being understood that, to the extent that any covenants or other provisions are added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the Lenders if such covenants or other provisions are also added for the benefit of any then outstanding Term Loan), (ii) increase the Effective Yield of the applicable ~~Joinder Agreement). The terms and provisions~~ Class of Term Loans and/ or amend the ~~New Revolving Loans and New Revolving Credit Commitments shall be identical~~ amortization applicable thereto, in each case, to the ~~2020 Revolving Credit~~ extent necessary in order to ensure that any applicable Class of Term Loans ~~and~~ are “fungible” with the ~~2020 Revolving Credit Commitments~~applicable Incremental Term Loans; provided that ~~New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than~~ any such amendment to the ~~commitment termination date~~ amortization applicable to any existing Class of ~~the 2020 Revolving Credit Commitments (or~~ Term Loans shall not result in the ~~case~~ decrease of ~~New Revolving Credit Commitments that are Refinancing Commitments~~any amortization payment any Lender of such Class of Term Loans would have received prior to giving effect to such amendment, ~~later than~~ (iii) add, modify or extend “soft call” or add, modify or extend any other “call protection,” in either case, for the ~~commitment termination date~~ benefit of any existing Class of Loans and (iv) modify the ~~Revolving Credit Commitments being refinanced~~terms of this Agreement to appropriately incorporate revolving facility mechanics (including those related to payments, prepayments, purchases of participations and reallocation mechanisms and letter of credit and/or swingline subfacilities) and ~~(b) fees~~ other provisions and ~~pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments~~commitment schedules relating to revolving facilities generally)). (ej) ~~Each~~ Notwithstanding Section 10.5, 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 (Madison Air Solutions Corp), Credit and Guaranty Agreement (Madison Air Solutions Corp)

Incremental Facilities. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~may~~ may, by ~~written~~ notice to the Administrative Agent ~~elect~~ (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request ~~the establishment of~~ to add 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~~Incremental Loans” ~~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~~ each 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 (eachtranche, an “~~Increased Amount Date~~Incremental Facility”) 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~~ at the time of each such request and upon the ~~New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In~~ effectiveness of each ~~case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that~~ Incremental Facility Amendment (i) no Default or Event of Default has occurred and is continuing or shall ~~exist on such Increased Amount Date before or after giving effect to such New Loan Commitments~~result therefrom, ~~as applicable;~~ (ii) ~~both before~~ the aggregate amount of Incremental Facilities plus the aggregate amount of Incremental Equivalent Debt shall not exceed the Incremental Cap. Each tranche of Incremental Loans shall be in an integral multiple of $1,000,000 and ~~after giving effect to~~ be in an aggregate principal amount that is not less than $25,000,000 (or in each case such lesser minimum amount reasonably approved by the ~~making~~ Administrative Agent). (b) Any Incremental Loans (i) shall rank pari passu in right of ~~any Series of New Term Loans or New Revolving Loans, each~~ payment and security with the Obligations in respect of the ~~conditions~~ other outstanding Loans as set forth in ~~Section 7~~ the relevant Incremental Facility Amendment (which shall be ~~satisfied;~~ reasonably satisfactory to the Administrative Agent), (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Loans, (iii) ~~the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed~~ other than amortization, maturity date and ~~delivered by the Borrower~~ pricing (interest rate, fees, funding discounts and ~~Administrative Agent, and each of~~ prepayment premiums which shall be ~~recorded in the Register and shall be subject to the requirements~~ set forth in ~~Section 5.4(d~~the relevant Incremental Facility Amendment)~~; (iv)~~ , shall have the ~~Borrower shall make any payments required pursuant~~ same terms as the Closing Date Loans or such terms as are reasonably satisfactory 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 AgreementAgent; provided that (A) if the ~~use~~ effective yield (which, for such purpose only, shall be deemed to take account of ~~proceeds~~ interest rate margin and benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the Weighted Average Life to Maturity of such ~~New Loan Commitments is an acquisition~~ Incremental Loans and (2) four years) payable to all Lenders providing such Incremental Loans (but excluding any arrangement, structuring, syndication or ~~investment permitted under this Agreement, if agreed among~~ other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Incremental Loans) on such Incremental Loans determined as of the ~~Borrower and~~ initial funding date for such Incremental Loans exceeds the ~~New Revolving Loan Lenders and/or New Term Loan Lenders~~effective yield (determined on the same basis as the preceding parenthetical) on the Closing Date Loans or any then existing Incremental Loans, as applicable, ~~customary “SunGard” limited conditionality shall apply~~ immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Closing Date Loans or such ~~new Loan Commitments~~ then existing Incremental Loans, as applicable, shall be adjusted in ~~lieu~~ order that such effective yield on such Incremental Loans shall not exceed such effective yield on the Closing Date Loans and such then existing Incremental Loans by more than 0.50%, (B) any Incremental Loans shall not have a final maturity date earlier than the then Latest Maturity Date and (C) any Incremental Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the ~~conditions set forth in clauses (i)~~later of the then remaining Closing Date Loans or then existing Incremental Loans, ~~(ii) and if~~ as applicable, (~~v), above and (B~~iv) 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~~tranche of Incremental Loans, there shall not be more than five tranches of Loans outstanding under this Agreement at any time (it being understood that, for purposes of this clause (iv), the ~~Revolving Credit~~ Initial Loans, any tranche of Extended 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~~ any tranche of ~~such New Revolving Credit Commitments to the Revolving Credit Commitments, (b~~Incremental Loans shall constitute separate and distinct tranches of Loans) 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 (cv) ~~each New Revolving~~ the Incremental Loans shall not be guaranteed by any Person that is not a Loan ~~Lender~~ Party and shall ~~become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto~~not be secured by any asset that is not Collateral. (c) ~~On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject~~ Each notice from the Borrower pursuant to this Section 2.24 shall set forth the ~~satisfaction~~ requested amount and proposed terms of the ~~foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series~~ relevant Incremental Loans. Any Additional Lenders that elect to extend Incremental Loans shall ~~make a Loan~~ be reasonably satisfactory to the Borrower ~~(a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series,~~ and (iiunless such Additional Lender is already a Lender or an Affiliate of a Lender) the Administrative Agent (in each ~~New Term Loan Lender of~~ case, any ~~Series~~ approval thereof not to be unreasonably withheld or delayed), and, if not already a Lender, shall become a Lender ~~hereunder~~ under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the Borrower, the Administrative Agent and the Additional Lenders 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~~ Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Loans, unless it so agrees. Commitments in respect 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 Incremental 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 become Commitments under this 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 An Incremental Facility Amendment may, without the consent of any other ~~Lenders~~Lenders or any other Person, effect such amendments to ~~this Agreement and the other Credit~~ any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative ~~Agent~~Agent and the Borrower, 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 including to provide for ~~other~~ class voting provisions applicable to the Additional Lenders on terms ~~consistent with this~~ comparable to the provisions of Section ~~2.14(f~~9.08(b)). ~~In order~~ The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to ~~establish any Extended Term Loans, the Borrower shall provide a notice to~~ by the Administrative Agent and the Additional Lenders party thereto, be subject to the satisfaction or waiver on the date thereof (~~who shall provide a copy~~ each, an “Incremental Facility Closing Date”) of ~~such notice to~~ each of the ~~Lenders~~ conditions set forth in Section 4.02 (it being understood that all references to the date of ~~the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms~~ making any extension of ~~the Extended Term Loans to be established, which~~ credit in Section 4.02 shall be ~~identical~~ deemed to refer to the ~~Term Loans~~ Incremental Facility Closing Date). The proceeds 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~~ Incremental Loans may be ~~delayed to later dates than~~ used for any general corporate purpose permitted hereunder. To the ~~scheduled amortization~~ extent reasonably requested by the Administrative Agent, the effectiveness of ~~principal~~ an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on 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~~ Closing Date under Section ~~2.5 or in the Joinder Agreement, as the case may be~~4.01, 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)~~ Borrower 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 Restricted Subsidiaries. The Administrative Agent and the Lenders ~~providing such Extended Term Loans~~ hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in ~~addition~~ this Agreement shall not apply 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~~ transactions effected pursuant 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)2.24. (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 (Neff Corp), Second Lien Credit Agreement (Neff 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 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. (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 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. (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~~ 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~~ 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~~ 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 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~~ 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 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 Parent Borrower (either on behalf of itself or on behalf of another Borrower) may, from time to time after the Closing Date, upon notice by the Parent Borrower to the Person appointed by the Parent Borrower to arrange an incremental Facility (such Person (who may ~~by written notice to~~ be the Administrative Agent ~~elect~~ or any other Person appointed by the Parent Borrower), the “Incremental Arranger”) specifying the proposed amount and currency thereof, request (1) 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 ~~request~~ be increased) (each, a “Revolving Credit Commitment Increase”), (2) an increase in any Term Loan Tranche then outstanding (which shall be on the ~~establishment~~ same terms as, and become part of, the Term Loan Tranche proposed to be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”), (3) the 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/or (4) the addition of one or more new term loan 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~~ ) in 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 be approved by~~ the ~~Administrative Agent or~~ Fixed Incremental Facility, (y) ~~shall constitute~~ an unlimited amount (this clause (y), the ~~difference between~~ “Ratio-Based Incremental Facility”) so long as the Maximum ~~Incremental Facilities Amount~~ Ratio Requirement is satisfied and (z) an amount equal to (i) (A) all ~~such~~ voluntary prepayments of pari passu Term Loans (including, for the avoidance of doubt, any New ~~Loan Commitments obtained on or prior~~ Term Loans that are pari passu in right of payment and security with the Initial Term Loans) made pursuant to ~~such date). Each such notice shall specify~~ Section 2.05(a) and (B) all repurchases and cancellations of pari passu Term Loans (including, for the ~~date (each~~avoidance of doubt, ~~an “Increased Amount Date”~~any New Term Loans) ~~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~~ made pursuant to the ~~Administrative Agent. The Borrower may approach~~ terms hereof (including for the avoidance of doubt, amounts paid pursuant to Section 3.06), in each case of clauses (A) and (B), in an amount equal to the principal amount of the Term Loans so prepaid, repurchased and/or cancelled, (ii) voluntary prepayments of Revolving Credit Loans (including, for the avoidance of doubt, any ~~Lender or any Person (other than a natural person~~New Revolving Loans) made pursuant to Section 2.05(a) to ~~provide all or~~ the extent accompanied by a ~~portion~~ corresponding, permanent reduction in the Revolving Credit Commitments pursuant to Section 2.06(a) and (iii) voluntary prepayments, redemptions, repurchases and cancellations of other Indebtedness that is pari passu in right of payment and security with any Term Loans (including the ~~New Loan Commitments; provided~~ Existing Dollar Senior Secured Notes, the Existing Euro Senior Secured Notes and the Existing Floating Rate Notes but excluding any prepayment made in accordance with Section 2.05(b)(ii)(B)), and with respect to any such Indebtedness that ~~any Lender offered or approached~~ is revolving Indebtedness, to ~~provide all or~~ the extent accompanied by a ~~portion of~~ corresponding, permanent reduction in the ~~New Loan Commitments may elect or decline~~revolving commitments in respect thereof, in ~~its sole discretion, to provide a New Loan Commitment. In~~ each case, ~~such New Loan Commitments shall become effective as~~ in an amount equal to the principal amount of Indebtedness so prepaid, repurchased and/or cancelled, in each case 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 foregoing clauses (i), (ii) and ~~if applicable~~(iii), 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)) (this clause (z), the “Prepayment-Based Incremental Facility”) (such sum and subject to Section 1.01(e), at any such time, the “Incremental Amount”); provided that, subject in all respects to Section 1.10(e), any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000, and (y) the entire amount of any increase that may be requested under this Section 2.16; provided, further, that for purposes of any New Loan Commitments established pursuant to this Section 2.16 and Incremental Equivalent Debt incurred pursuant to Section 2.17: (i) at the Parent Borrower’s option, the Borrowers shall be deemed to have used amounts under the Ratio-Based Incremental Facility (to the extent compliant therewith), prior to utilization of the Prepayment-Based Incremental Facility and the Fixed Incremental Facility, and the Borrowers shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Fixed Incremental Facility, (ii) New Loan Commitments pursuant to this Section 2.16 and Incremental Equivalent Debt pursuant to Section 2.17 may be incurred under the Ratio-Based Incremental Facility (to the extent compliant therewith), the Fixed Incremental Facility and the Prepayment-Based Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction or series of related transactions by, at the Parent Borrower’s option, first calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts substantially concurrently utilized pursuant to the Fixed Incremental Facility, the Prepayment-Based Incremental Facility or any amounts substantially concurrently incurred under the Revolving Credit Facility or under Section 7.02 (other than any Ratio Debt or Ratio Acquisitions Debt incurred pursuant to Section 7.02)) and then calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Fixed Incremental Facility) and then calculating the incurrence under the Fixed Incremental Facility, (~~v), above~~ iii) in the event that any New Loan Commitments pursuant to this Section 2.16 and ~~(B) if~~ Incremental Equivalent Debt pursuant to Section 2.17 incurred under the Fixed Incremental Facility or the Prepayment-Based Incremental Facility subsequently meet the criteria for such New Loan Commitments ~~are being used to replace~~ or ~~refinance Term Loans~~ Incremental Equivalent Debt, as applicable, under the Ratio-Based Incremental Facility, unless the Parent Borrower elects otherwise, such New Loan Commitments or ~~Revolving Credit Commitments pursuant to clause~~ Incremental Equivalent Debt shall be automatically reclassified as incurred under the Ratio-Based Incremental Facility (~~iii)~~ and for the avoidance of ~~the definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”)~~doubt, 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~~ Fixed Incremental Facility and/or 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 CommitmentsPrepayment-Based Incremental Facility, as applicable, shall ~~notify~~ be increased by a corresponding amount but not to exceed the ~~Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the~~ maximum 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 permitted under Section ~~2.1(c) and Letters of Credit under Article 3~~2.16(a)), 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 coand

Appears in 2 contracts

Sources: Syndicated Facility Agreement (Cumberland Farms LTD), Syndicated Facility Agreement (Cumberland Farms LTD)

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~~ 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~~ 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~~ 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~~ 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~~ 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 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~~ 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~~ 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~~ 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~~ 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 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 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 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 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 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 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~~ Borrower may by written notice to ~~Administrative Agent~~ GSCP elect to request (A) the establishment of ~~one or more~~ new term loan commitments (~~x) additional tranches of term loans (the commitments thereto,~~ the “New Term Loan Commitments”) to refinance the Tranche X Term Loans in an amount not to exceed the lesser of (i) $1,250,000,000 and (ii) an amount sufficient (together with such portion of other funds available to Borrower that Borrower elects in its sole discretion to apply for such purpose) to repay all outstanding Tranche X Term Loans (the loans made pursuant to such New Term Loan Commitments being referred to herein as the “TLX Take-Out Loans”) and (B) from and after such time as the Tranche X Term Loans have been repaid in full (including interest accrued thereon and any fees in respect thereof), the establishment of one or more New Term Loan Commitments and/or (~~y) increases in~~ prior to the Revolving ~~Credit~~ Commitment Termination Date), an increase to the existing Revolving Loan Commitments (any such increase, the “New Revolving ~~Credit Commitments” and, together with the New Term Loan Commitments, the “New~~ Loan Commitments”~~), by an~~ ) the aggregate amount of all such increased commitments and new loans made pursuant to this clause (B) not ~~in excess~~ to exceed the lesser of (i) $250,000,000 and (ii) the ~~Maximum Incremental Facilities Amount in~~ positive difference, if any, between $1,250,000,000 and the aggregate ~~and~~ principal amount of any TLX Take-Out Loans. Any such increased commitment or new loan shall be in an amount 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)~~integral multiples of $25,000,000 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~~ 5 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 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 GSCP 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 (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 6.7 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, 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 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 or New Term 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 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 (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 (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 Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans 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~~ substantially the same as the Tranche B-1 Term Loans or ~~more Classes~~ the Tranche B Term Loans, as applicable. The terms and provisions of the ~~existing Initial Term~~ New Revolving Loans shall be substantially the same as 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 Revolving Loans, the Tranche A Term Loans, the Tranche B-1 Terms Loans or the Tranche B Term Loans as applicable (whichever is longest), (ii) the 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) and mandatory prepayment rights (other than scheduled amortization)~~ final maturity of the ~~New~~ Revolving Loans, the Tranche A Term ~~Loans~~ Loans, the Tranche B-1 Term Loans, the Tranche B Term Loans, as applicable, and the ~~existing~~ Tranche X 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~~ New Term 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 (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 may, under any circumstances, be payable with respect to the Tranche B-1 Term Loans or the Tranche B Term Loans, as applicable, plus 0.50% per annum unless the interest rate with respect to the Tranche B-1 Term Loans or the Tranche B Term Loans, as applicable, is increased so as to equal the interest rate 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 0.25% per annum (the “Increased Spread”) (in which case the Applicable Margin that shall apply to the calculation of the interest rate on the Tranche A Term Loans shall, in the case of each ~~Series~~ Tier set forth in the table contained in the definition of “Applicable Margin,” be increased by an amount equal to the Increased Spread; and (iv) in the event that ~~differ from~~ the ~~existing~~ proceeds of the New Term Loans shall be ~~reasonably acceptable~~ used to refinance any portion of the Tranche X Term Loans, as of the last day of the most recently ended period of four (4) consecutive Fiscal Quarters, the Leverage Ratio (determined for any such period by reference to the ~~Administrative Agent (~~Compliance Certificate delivered pursuant to Section 5.1(d) calculating the Leverage Ratio as ~~evidenced by its execution~~ of the ~~applicable Joinder Agreement). The terms and provisions~~ last day of ~~the New Revolving Loans and New Revolving Credit Commitments~~ such period of four consecutive Fiscal Quarters) 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 (4.25:1.00, 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) less. 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~~ 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 (Hologic Inc)

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 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 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~~ 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~~ 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 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~~ 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~~ 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 (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 on one or more occasions, by written notice to the Administrative ~~Agent elect to~~ Agent, request (i) during the Revolving Availability Period, the establishment of ~~one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”)~~ Incremental Revolving Commitments and/or (yii) ~~increases in Revolving Credit Commitments (~~the ~~“New Revolving Credit Commitments” and, together with the New~~ establishment of Incremental Term Loan Commitments, provided that (1) the ~~“New Loan Commitments”), by an~~ aggregate amount of all the Incremental Commitments from and after the Closing Date shall not ~~in excess~~ exceed an amount equal to the greater 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~~ $500,000,000 and (y) ~~shall constitute~~ an amount, which, if fully drawn on the ~~difference between~~ last day of the immediately preceding fiscal quarter of the Borrower for which financial statements have been delivered to the Lenders pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, at the end of the last fiscal quarter of the Borrower included in the financial statements referred to in Section 3.04(a)), calculated on a pro forma basis in accordance with Section 1.04(b), would not result in the Net Senior Secured Leverage Ratio exceeding the Maximum Permitted Net Senior Secured Leverage Ratio then in effect minus 0.25 to 1.00, it being understood and agreed that in the case of clause (y) above, such calculation shall only be made at the time such Incremental ~~Facilities Amount~~ Commitments are being made and ~~all such New Loan Commitments obtained on or prior to such date)~~not at any subsequent date and (2) each Incremental Commitment shall be in integral multiples of $5,000,000. Each such notice shall specify (A) the date ~~(each, an “Increased Amount Date”)~~ on which the Borrower proposes that the ~~New Loan~~ Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach~~ Agent and (B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) 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~~ any Incremental Revolving Commitment or ~~a portion of the New Loan Commitments~~ Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a ~~New Loan Commitment~~Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender). (b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans. In The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of any prior Incremental Term Commitments and Incremental Term Loans made pursuant to this Section 2.21; provided that (i) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of any Incremental Term Loans made on or before such date and (ii) no Incremental Term Maturity Date shall be earlier than the earlier of the Revolving Maturity Date and the Latest Maturity Date of any Incremental Term Loans theretofore made. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each ~~case~~a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such ~~New Loan~~ Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective ~~as of the applicable Increased Amount Date; provided that~~ unless (i) no Default or Event of Default shall ~~exist~~ have occurred and be continuing on ~~such Increased Amount Date before or~~ the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such ~~New Loan Commitments~~Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, ~~as applicable;~~ (ii) ~~both before~~ on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to such Incremental Commitments and the making of ~~any Series~~ Loans and other extensions of ~~New Term Loans or New Revolving Loans, each~~ credit thereunder to be made on the date of effectiveness thereof and assuming that all Incremental Commitments are fully drawn (and without limiting the requirements in clause (1) of the ~~conditions~~ proviso in Section 2.21(a) above), (A) the Net Senior Secured Leverage Ratio, calculated at the end of the last fiscal quarter of the Borrower for which financial statements have been delivered to the Lenders pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, at the end of the last fiscal quarter of the Borrower included in the financial statements referred to in Section 3.04(a)), both on an actual basis and on a pro forma basis in accordance with Section 1.04(b), shall not exceed the Maximum Permitted Net Senior Secured Leverage Ratio then in effect minus 0.25 to 1.00 and (B) the Borrower shall be in compliance with the financial covenants set forth in ~~Section 7 shall be satisfied; (iii)~~ Sections 6.12 and 6.13 at the ~~New Loan Commitments shall be effected~~ end of the last fiscal quarter of the Borrower for which financial statements have been delivered to the Lenders pursuant to ~~one~~ Section 5.01(a) or ~~more Joinder Agreements executed and delivered by~~ (b) (or, prior to the delivery of any such financial statements, at the end of the last fiscal quarter of the Borrower ~~and Administrative Agent, and each of which shall be recorded~~ included in the ~~Register and shall be subject~~ financial statements referred to ~~the requirements set forth~~ in Section ~~5.4(d~~3.04(a); ), calculated on both an actual basis and on a pro forma basis in accordance with Section 1.04(b), (iv) the Borrower shall make any payments required to be made pursuant to Section ~~2.11~~ 2.16 in connection with such Incremental Commitments and the ~~New Loan Commitments, as applicable;~~ related transactions under this Section and (v) the Borrower shall ~~deliver or cause~~ have delivered to ~~be delivered any~~ the Administrative Agent such legal ~~opinions or~~ opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. ~~Any New Term Loans made on~~ Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section. (d) Upon the effectiveness of an ~~Increased Amount Date~~ Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be ~~designated, a separate series (~~deemed to be a “~~Series”~~Lender” (and a Lender in respect of the Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of ~~New Term~~ Commitments and Loans ~~for~~ of the applicable Class) hereunder and shall be bound by all ~~purposes~~ agreements, acknowledgements and other obligations of ~~this Agreement; provided that~~ Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) if such Incremental Revolving Commitment shall constitute (or, in the ~~use of proceeds~~ event such Incremental Lender already has a Commitment, shall increase) the Revolving Commitment 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 Incremental Lender and (B) if the aggregate amount of the Revolving Commitments shall be increased by the amount of such ~~New Loan Commitments are being used~~ Incremental Revolving Commitment, in each case, subject to ~~replace~~ further increase or ~~refinance Term Loans or Revolving Credit Commitments pursuant~~ reduction from time to ~~clause (iii) of~~ time as set forth in the definition of ~~Maximum~~ the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental ~~Facilities Amount (“Refinancing Commitments”)~~Revolving Commitment, the ~~conditions set forth in clauses (i)~~ Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and ~~(ii) above~~ the Applicable Percentage of all the Revolving Lenders, shall ~~not apply~~automatically be adjusted to give effect thereto. (be) On the date of effectiveness of any ~~Increased Amount Date on which New~~ Incremental Revolving ~~Credit Commitments are effected~~Commitments, ~~subject to the satisfaction of the foregoing terms and conditions, (a)~~ each ~~of the Lenders with~~ Revolving ~~Credit Commitments~~ Lender shall assign to each Incremental Revolving Lender ~~with a New~~ holding such Incremental Revolving ~~Credit Commitment (each~~Commitment, ~~a “New Revolving Loan Lender”)~~ and each ~~of the New~~ such Incremental Revolving ~~Loan Lenders~~ Lender shall purchase from each ~~of the Lenders with~~ Revolving ~~Credit Commitments~~Lender, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit ~~Loans~~ outstanding on such ~~Increased Amount Date~~ date as shall be necessary in order that, after giving effect to all such assignments and purchases, ~~the~~ such Revolving Loans and participations in Letters of Credit ~~Loans~~ will be held by ~~existing~~ all the Revolving ~~Credit~~ Lenders ~~and New~~ (including such Incremental Revolving ~~Loan Lenders~~ Lenders) ratably in accordance with their ~~Revolving Credit Commitments~~ Applicable Percentages after giving effect to the ~~addition~~ effectiveness of such ~~New~~ Incremental 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 theretoCommitment. (cf) On ~~any Increased Amount Date on which any New~~ the date of effectiveness of Incremental Term ~~Loan~~ Commitments of any ~~Series are effective~~Series, subject to the ~~satisfaction of the foregoing~~ terms and ~~conditions~~conditions set forth herein and in the applicable Incremental Facility Agreement, ~~(i)~~ each Lender ~~with a New~~ holding an Incremental Term ~~Loan~~ Commitment ~~(each, a “New Term Loan Lender”)~~ of ~~any~~ such Series shall make a ~~Loan~~ loan to the Borrower ~~(a “New Term Loan”)~~ in an amount equal to ~~its New~~ such Lender’s 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 Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (dg) The ~~terms~~ Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and ~~provisions~~ of the ~~New Term Loans and New Term Loan Commitments~~ effectiveness of any ~~Series shall be~~Incremental Commitments, ~~except as otherwise set forth herein or~~ in each case advising the ~~applicable Joinder Agreement, identical to one or more Classes~~ Lenders 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~~ details thereof and, in the case of ~~New Term Loans that are Refinancing~~ effectiveness of any Incremental Revolving 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 Applicable Percentages of the Revolving ~~Credit Commitments being refinanced)~~ Lenders after giving effect thereto 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 assignments required 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 made 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 date2.21(e). (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 Amendment and Incremental Facility Agreement (Bentley Systems Inc), Credit Agreement (Bentley Systems 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~~ 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 (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~~ Revolving Loan Commitments, the “~~New Loan Commitments~~Incremental Facilities” and each, an “Incremental Facility”), by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $250,000,000 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 existing 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~~Any New Revolving Loan Lender or New Term Loan Lender shall be reasonably acceptable to the Administrative Agent and, in the case of New Revolving Commitments, the Issuing Bank and the Swing Line Lender, to the extent provided in Section 11.06(c) (any such consents not to be unreasonably withheld or delayed). 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~~ (x) the Senior Secured Leverage Ratio shall not be greater than 2.75 to 1.00 and ~~after giving effect to the making of any Series of New Term Loans or New Revolving Loans,~~ (y) Borrower and its Restricted Subsidiaries shall be in compliance with each of the ~~conditions~~ covenants set forth in ~~Section 7 shall be satisfied~~Article 7, in each case determined on a pro forma basis for the period then most recently ended, including the incurrence of such New Revolving Loan Commitments (and assuming full usage of the New Revolving Loan Commitments with Revolving Loans) or New Term Loans, 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); (iv4) 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, will rank pari passu or junior in right of payment and with respect to security with the other Loans and Commitments hereunder on terms reasonably satisfactory to Administrative Agent; and (v5) (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 (5) 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~~ Representative may, by written notice to the Administrative ~~Agent~~ Agent, elect to request prior to the ~~establishment~~ Commitment Termination Date of ~~one or more~~ any Class of Revolving Commitments, an increase to the then-existing Revolving Commitments of such Class (~~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~~ 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 Representative 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 Representative 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 ~~after giving effect~~ warranties contained herein or in any Loan Document (other than the representations and warranties contained in Sections 5.05(d) and 5.06) shall be true and correct in all material respects on and as of such Increased Amount Date to the ~~making~~ 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 ~~Series of New Term Loans~~ representations and warranties that already are qualified or modified by materiality in the text thereof; (3) 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~~ Borrowers, 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); (~~iv) the~~ 4)each Borrower shall make any payments required pursuant to Section ~~2.11~~ 3.04 in connection with the New ~~Loan~~ Revolving Commitments~~, as applicable~~; and (v5) the Borrower Representative 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) each of the then-existing 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 of such Class, and each such New Revolving Loan Lender shall purchase from each ~~of the Lenders with Revolving Credit Commitments~~such then-existing Lender, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving ~~Credit~~ Loans of such Class 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~~ Exposure of such Class will be held by such then-existing ~~Revolving Credit~~ Lenders and such 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, (bii) each New Revolving ~~Credit~~ Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each Revolving 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 Representative’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 converted2.13. (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 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~~Notwithstanding anything in Section 10.01(a) ~~both before and after giving effect~~ to the ~~making of any Series of New Term Loans or New Revolving Loans~~contrary, ~~each of the conditions set forth in Section 7 shall~~ this Agreement may 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 amended (or ~~in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced~~amended and restated) 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 prior to the ~~Administrative Agent~~ Maturity Date to give effect to (~~who shall provide a copy of such notice~~ a) an increase 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~~ Commitments on the same terms and conditions as the existing Revolving Credit Commitments and/or ~~any New~~ (b) additional commitments to make term loans to be structured as a separate term loan tranche with terms different from the Term A Facility (each such increase to the Revolving Credit ~~Commitments~~Commitments and/or establishment of a new tranche of term loans being referred to herein as an “Incremental Facility,” and all such increases being referred to collectively herein as the “Incremental Facilities”) to be made to the Co-Borrowers by an agreement in writing entered into by the Co-Borrowers, the Administrative Agent and each Person (including any then existing Lender) that shall agree to provide any portion of such Incremental Facility (but without the consent of any other Lender), and each such Person that shall not already be a Lender shall, at the time such agreement becomes effective, become a Lender with the same effect as if it had already been a Lender under this Agreement with the Revolving Credit Commitment and/or term loans set forth in such Agreement; provided, however, that: (i) the aggregate principal amount of all such Incremental Facilities effected after the Closing Date pursuant to this Section 10.01(b) shall not exceed $500,000,000, (ii) no Default shall have occurred and be continuing 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 on the ~~termination~~ date ~~thereof and the scheduled maturity date(s)~~ of any ~~payment of principal~~ such increase, (iii) with respect to ~~all or~~ any such Incremental Facility structured as separate term loan tranche (A) the final maturity date of such Incremental Facility shall be no earlier than the Maturity Date of the Term A Facility and (B) the weighted average life to maturity of such Incremental Facility shall not be shorter than the remaining weighted average life to maturity of the Term A Facility, (iv) each such increase effected pursuant to this Section 10.01(b) shall be in a ~~portion of any principal~~ minimum amount of ~~Loans related~~ $50,000,000 (and integral multiples of $10,000,000 in excess thereof), (v) all fees and expenses owing in respect of such increase required 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 be paid to the Administrative Agent or the Lenders shall have been paid, (~~who~~ vi) such term loan shall ~~provide a copy of such notice~~ have no covenants or provisions (other than economic terms) more onerous to ~~each~~ the Co-Borrowers than the covenants and provisions of the ~~Lenders of~~ Term A Facility; it being understood that a new term loan tranche may share in prepayments under Section 2.05 on ratable basis with Term Loan A. Subject to the limitations set forth above, the interest rate margin, weighted average life to maturity and final maturity applicable ~~Class of Existing Revolving Credit Commitments) (~~to any such Incremental Facility structured as a ~~“Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms~~ separate term loan tranche shall be ~~identical to those applicable to~~ determined by 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 Co-Borrowers and the Lenders providing such ~~Extended~~ Incremental Facility at the time such Incremental Facility is made available to the Co-Borrowers. The Loans and Commitments established pursuant to this Section 10.01(b) shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Co-Borrowers may offer, in consultation with the Administrative Agent, the increase to (i) existing Lenders (but no Lender will have an obligation to increase its Commitment hereunder) and (ii) any third party financial institutions (which must be reasonably acceptable to the Administrative Agent in the case of any such lender providing additional 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 datehereunder). (~~iii~~ii) ~~The Borrower shall provide the applicable Extension Request at least ten (10) Business Days~~ Any such amendment (or ~~such shorter period as may be agreed by~~ amendment and restatement) effected pursuant to this Section 10.01(b) shall amend the ~~Administrative Agent) prior~~ provisions of this Agreement and the other Loan Documents to set forth the ~~date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender~~ terms of each Incremental Facility established thereby (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 any applicable restrictions set forth in clause (i) immediately above) and to effect such ~~Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments,~~ other changes as ~~applicable, shall notify~~ the Co-Borrowers and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Incremental Facility; provided, however, that no such agreement shall effect any change described in Section 10.01(a) without the consent of each Person required to consent to such change under such clause (~~an “Extension Election”~~it being agreed, however, that (A) ~~on or prior~~ modifications to the ~~date specified in~~ definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental Facility with the benefit of such ~~Extension Request~~ provisions will not, by themselves, be deemed to effect any of the ~~amount~~ changes described in Section 10.01(a)(vi) and (B) the payment of ~~its~~ closing fees in connection with the Incremental Facilities and the creation of ratable sharing of prepayments among the Incremental Facilities structured as a separate term loan tranche (or tranches) and the Term ~~Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ A Facility shall not be deemed to effect any 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 changes described 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 co10.01(a)(v)).

Appears in 1 contract

Sources: Credit Agreement (Kinetic Concepts Inc)

Incremental Facilities. (a) ~~The~~ (i) Borrower may by written notice to the Administrative Agent (the “Increase Loan Notice”) elect to request prior to the ~~establishment~~ first anniversary of ~~one or more~~ the Closing Date, an increase to the existing Revolving Credit Commitment (~~x) additional tranches of term loans (the commitments thereto~~any such increase, the “Primary 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”),~~ on any one or more occasions by an ~~aggregate~~ amount not in excess of ~~the Maximum Incremental Facilities Amount~~ $20,000,000 in the ~~aggregate~~ aggregate. Any Primary New Revolving Loan Commitment shall be in the minimum amount of $5,000,000 and ~~not~~ integral multiples of $500,000 in excess thereof (or, in the aggregate, if less, the entire remaining amount of an amount equal to $20,000,000 less ~~than $100,000,000 individually (or such lesser~~ the 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~~ of Revolving Loan Commitments ~~obtained on or prior~~ outstanding as of the applicable Increased Amount Date (as defined below)), and shall be subject to the voluntary participation of Lenders in such ~~date)~~Primary New Revolving Loan Commitment as otherwise provided herein. ~~Each such~~ Such notice shall specify (A) the date (~~each, an~~ the “Increased Amount Date”) on which ~~the~~ Borrower proposes that the Primary New Revolving Loan Commitments shall be effective, which need not be the same date for all Primary New Revolving Loan Commitments and 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~~ Agent (or such shorter period as 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~~ approved 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)~~ the identity 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~~ or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender”) ~~and each~~ to whom Borrower proposes any portion of ~~the~~ such Primary New Revolving Loan ~~Lenders shall purchase from each of~~ Commitments be allocated and 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 amounts 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 theretoproposed allocations. (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 1 contract

Sources: Credit Agreement (Affirmative Insurance Holdings Inc)

Incremental Facilities. (a) The Borrower may ~~by written notice~~ (A) prior to ~~Administrative Agent elect to request~~ the ~~establishment~~ Revolving Credit Termination Date of any Class, increase the aggregate outstanding amount of the existing Revolving Credit Commitments of such Class (any such increase, the “New Revolving Credit Commitments” and the revolving loans made thereunder, the “New Revolving Loans”) and/or (B) increase the aggregate outstanding principal amount of the Term Loans of any Class and/or establish one or more Classes of new term loan commitments (~~x) additional tranches of~~ any such increase or new term ~~loans (the commitments thereto~~loan commitment, the “New Term Loan Commitments~~”) and/or (y) increases in Revolving Credit Commitments (~~” and the ~~“New Revolving Credit Commitments” and, together with the New Term Loan Commitments~~term loans made thereunder, the “New ~~Loan Commitments~~Term Loans”), in each case by ~~an aggregate amount not~~ delivering a Commitment Amount Increase Notice (a “Commitment Amount Increase Notice”) substantially in ~~excess~~ the form attached hereto as Exhibit H or in such other form reasonably acceptable to the Administrative Agent at least three (3) Business Days prior to the stated effective date, unless the Administrative Agent shall have determined in its sole discretion to accept such Commitment Amount Increase Notice on such effective date (the “Increased Amount Date”) such increase or new commitment (the “Commitment Amount Increase”) identifying (i) any existing Lenders and/or any new lender(s) (each, a “New Revolving Lender” or “New Term Lender,” as applicable), subject, in the case of New Revolving Lenders and New Term Lenders, to the reasonable consent of the ~~Maximum Incremental Facilities Amount~~ Administrative Agent (and in the ~~aggregate~~ case of any New Revolving Lenders, the Swing Line Lender and L/C Issuer) to the extent such consent would be required under Section 13.12 in respect of an assignment hereunder and (ii) the amount of such Lender’s New Revolving Credit Commitment or New Term Loan Commitments and in the case of New Term Loans that are part of an existing Class of Term Loans, identifying such existing Class of Term Loans; provided, however, that (i) any Commitment Amount Increase shall be in an amount not less than $~~100,000,000 individually~~ 5,000,000 (or such lesser amount ~~as (x) may~~ which shall be approved by the Administrative Agent or represents all remaining availability under the limit set forth in this clause (yi)) ~~shall constitute~~ and in the ~~difference between the Maximum Incremental Facilities Amount and~~ aggregate for all such ~~New Loan Commitments obtained~~ increases not greater than (A) $150,000,000 (less the aggregate amount outstanding of Incremental Equivalent Debt incurred pursuant to clause (i)(x) of the proviso to Section 8.7(o)), plus (B) in the case of any Commitment Amount Increase that effectively extends the Revolving Credit Termination Date or any maturity date with respect to any Class of Loans or commitments hereunder, an amount equal to the prepayment to be made with respect to any Term Loans and/or the permanent commitment reduction to be made with respect to the Revolving Credit Facility, in each case to be replaced with such Commitment Amount Increase, plus (C) additional amounts in U.S. Dollars so long as, after giving effect to such additional amounts, the Secured Leverage Ratio does not exceed 2.75:1.00, calculated on a Pro Forma Basis (which (i) if in connection with an Acquisition, as of the last day of the most recent fiscal quarter for which financial statements are available 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~~definitive documentation for such Acquisition (or, ~~in its sole discretion~~if earlier, ~~to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of~~ the applicable Increased Amount Date~~; provided~~ ), (ii) shall assume that all debt incurred pursuant to this Section 1.16 and clause (ii)(y) of the proviso to Section 8.7(o) is secured on a pari passu basis with the Credit Facilities and, if consisting of revolving commitments, is fully drawn, and (iii) shall exclude from the “net debt” portion of such Pro Forma calculation the cash proceeds from the borrowing of the Commitment Amount Increase) (with the Borrower to select, on the date such Commitment Amount Increase is obtained, utilization under clauses (A), (B) or (C) in its sole discretion), (ii) except in connection with an Acquisition or other Investment permitted hereunder on the applicable Increased Amount Date (in which case, Section 1.16(g) shall be applicable), (x) no Default or Event of Default shall ~~exist~~ have occurred and be continuing on ~~such~~ the Increased Amount Date ~~before or~~ (both prior to and after giving effect to such Commitment Amount Increase) and (y) each of the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (or in all respects if otherwise qualified by “material” or “material adverse effect”) as of said time, except to the extent the same expressly relate to an earlier date (in which case, such representation and warranty shall be true and correct in all material respects as of such earlier date), (iii) with respect to any Commitment Amount Increase in respect of New ~~Loan~~ Revolving Credit Commitments, the New Revolving Credit Commitments material terms shall have all of the same terms and conditions as ~~applicable;~~ such existing Revolving Credit Commitments, (iiiv) ~~both before and after giving effect to the making of any Series of~~ New Term Loans ~~or New Revolving~~ borrowed hereunder may be part of an existing Class of Term Loans, ~~each~~ in which case such New Term Loans shall have all of the same terms and conditions ~~set forth~~ as such existing Term Loans, or may constitute a new Class of Term Loans, in ~~Section 7~~ which case such New Term Loans shall have such terms and conditions as the Borrower and the applicable New Term Lenders shall agree (and which are satisfactory to the Administrative Agent (it being understood that terms not substantially consistent with the then-existing applicable Class of Term Loans which are applicable only after the maturity and payment in full of such Term Loans are acceptable to the Administrative Agent)); provided that, (A) the applicable maturity date of any such New Term Loans shall be ~~satisfied;~~ no earlier than the final maturity date of the then outstanding Term Loans, (~~iii~~B) the Weighted Average Life to Maturity of all New ~~Loan Commitments~~ Term Loans shall be ~~effected~~ no shorter than the Weighted Average Life to Maturity of the existing Term Loans, (C) the interest rate applicable to the New Term Loans shall be determined by the Borrower and the applicable New Term Lenders; provided, however, that the interest rate (as determined by the Administrative Agent in accordance with this clause (C) and in consultation with the Borrower) applicable to any such New Term Loans shall not be greater than 50 basis points above the applicable interest rate (including the Applicable Margin) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Term Loans unless the interest rate applicable to the existing Term Loans is increased (which increase shall not require the consent of any Lender or the Borrower) to the extent necessary so that the interest rate applicable to such New Term Loans is no greater than 50 basis points above the interest rates of the existing Term Loans; provided, that in determining the applicable interest rate: (x) margins as well as all upfront and similar fees and original issue discount paid in the primary syndication of the Commitment Amount Increase or the existing Term Loans (based on an assumed four year average life to maturity for the applicable facilities), and any amendments to the Applicable Margin under this Agreement that became effective subsequent to the Closing Date but prior to the time of such Commitment Amount Increase shall be included in such calculation, (b) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their affiliates) in its capacity as such in connection with any of the existing Term Loans or to one or more ~~Joinder Agreements executed~~ arrangers (or their affiliates) in their capacities as applicable to any Commitment Amount Increase shall be excluded from such calculation and ~~delivered by~~ (c) if the New Term Loans include an interest rate floor greater than that applicable to the existing Term Loans or Revolving Credit Commitments, such excess amount shall be equated to interest margin for determining the increase, and (D) the New Term Loans shall share ratably in any prepayments of the existing Term Loans unless the Borrower and ~~Administrative Agent, and each~~ the Lenders in respect 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~~Term Loans elect lesser payments; ~~and~~ and (v) the ~~Borrower shall deliver~~ New Revolving Credit Commitments and/or New Term Loan Commitments will rank pari passu in right of payment and pari passu with respect to Liens on any Collateral with the existing Revolving Credit Commitments or ~~cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction.~~ existing Term Loans. (b) Any New Term Loans ~~made~~ effected through the establishment of one or more new series of Term Loans on an Increased Amount Date shall be ~~designated,~~ designated a separate ~~series (a “Series”)~~ Class 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~~ Loans are made that constitute an increase to an existing Class of ~~any Series are effective~~Term Loans (with all of the same terms and conditions as such existing Class of Term Loans), subject to the satisfaction of the foregoing terms and conditions, (i) each applicable existing Term Loan Lender ~~with~~ and New Term Lender of such Class shall make 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~~Class (it being understood that any New Term Loan Facility may provide for delayed draw term loans to be made on a date after the Increased Amount Date), (ii) any New Term Loan made by an existing Term Loan Lender and/or a New Term Lender pursuant to a Commitment Amount Increase shall be deemed a “Term Loan” for all purposes of this Agreement and (iiiii) each New Term Lender with a New Term Loan ~~Lender of any Series~~ shall become a Lender ~~hereunder~~ with respect to ~~the New Term Loan Commitment~~ such Class 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~~ Facility and all matters relating thereto. (d) On any Increased Amount Date (or such later date as shall be applicable to any delayed draw Term Loan) on which any New Term Loans are made that constitute a new Class of ~~any Series shall be~~Term Loans, ~~except as otherwise set forth herein or in~~ subject to the ~~applicable Joinder Agreement, identical to one or more Classes~~ satisfaction of the ~~existing Initial Term Loans; provided that~~ foregoing terms and conditions, (i) ~~the~~ each applicable existing Term Loan Lender and New Term Lender of such Class shall make a New Term Loan ~~Maturity Date of each Series shall be no earlier than~~ to the ~~2018B Second~~ Borrower in an amount equal to its New Term Loan ~~Maturity Date~~ Commitment (or or, in the case of any delayed draw Term Loan, relevant portion thereof) of such Class, (ii) any New Term ~~Loans that are Refinancing Commitments, no earlier than that~~ Loan of ~~the~~ such Class made by an existing Term ~~Loans being refinanced~~Loan Lender and/or a New Term Lender pursuant to a Commitment Amount Increase shall be deemed a “Term Loan” made pursuant to a separate Class of Term Credit Facility for all purposes of this Agreement and (iii) ~~and mandatory prepayment rights (other than scheduled amortization)~~ each New Term Lender with a New Term Loan shall become a Lender with respect to such Class 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~~ Loan Facility 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 Commitmentsmatters relating thereto. (e) On any Increased Amount Date on which any New Revolving Credit Commitments are effected as an increase to one or more existing Classes of Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (i) at such time and in such manner as the Borrower and the Administrative Agent shall agree, each of the existing Revolving Lender’s shall assign to each New Revolving Lender, and each New Revolving Lender shall purchase from each of the existing Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans of such Class outstanding on the date of such Increased Amount Date as shall be necessary such that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to such Commitment Amount Increase, (ii) each New Revolving Credit Commitment obtained by a Revolving Lender pursuant to a Commitment Amount Increase shall be deemed for all purposes a Revolving Credit Commitment of such Class and each Loan made thereunder shall be deemed, for all purposes of this Agreement, a “Revolving Loan” and (iii) each Lender with a New Revolving Credit Commitment shall become a Lender with respect to such Class of New Revolving Credit Commitment and all matters relating thereto. (f) The Borrower agrees to pay the reasonable documented out-of-pocket expenses of the Administrative Agent relating to any Commitment Amount Increase. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Revolving Credit Commitment or advance New Term Loans and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Revolving Credit Commitment or advance New Term Loans. Each ~~Joinder Agreement~~ Commitment Amount Increase Notice entered into in connection with any Commitment Amount Increase 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. (i) The Borrower may at any time and from time to time request that all or a portion~~ 1.16 and, 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~~ 1.16 shall supersede any ~~Extended Term Loans~~provisions of this Agreement (including, ~~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~~without limitation, Section 1.3, Section 1.9, Section 1.15, Section 3, Section 13.7 and Section 13.13) (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~~ other Loan Document that may ~~be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (~~otherwise prohibit or conflict 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~~Commitment, 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 New Term Loan Commitments or other increases in Term 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 as contemplated by 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)Section. (Ag) 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 Notwithstanding anything to the contrary in this ~~Section 2.14(f)~~ Agreement or ~~otherwise, (1) the borrowing and repayment (~~any 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 provision 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~~ Loan Document, if the proceeds of any ~~Extension Series shall constitute a separate Class~~ New Term Loans are intended to be applied to finance an Acquisition or other Investment permitted hereunder (x) with the consent 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 providing 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~~the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality, ~~New Revolving Credit Commitment~~ (y) the availability thereof shall be subject to the existence of no Event of Default under Sections 9.1(a), (j) or ~~Extended Revolving Credit Commitment~~ (k) and (z) compliance with the Secured Leverage Ratio will be determined as 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~~ execution 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 definitive agreement with 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 cothereto.

Appears in 1 contract

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

Incremental Facilities. (a) The Parent and/or the Borrower may, from time to time after the Closing Date, upon notice by the Borrower and/or the Parent (as applicable) to the Person appointed by the Borrower and/or the Parent (as applicable) to arrange an incremental facility (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by ~~written notice~~ the Borrower the “Incremental Arranger”) specifying the proposed amount thereof, request (i) 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 ~~Administrative Agent elect~~ be increased hereunder (except as otherwise provided in clauses (c) and (d) below or, subject to ~~request~~ the ~~establishment~~ terms of clause (f)(iii) below, with respect to any fees or original issue discount payable to the lenders providing such increase)) (each, a “Term Commitment Increase”), (ii) the addition of one or more new revolving credit facilities to the Facility, in each case, in such currency or currencies as the Borrower identifies in such notice (~~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 (iii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (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, together with the New Revolving Commitments and the Term ~~Loan Commitments~~Commitment Increase, the “New Loan Commitments”) by an amount not to exceed (including any unused amount thereof, in the case of any proposed New Revolving Facility) the sum of (x)the greater of (A) $100,000,000 and (B) 100% of Four Quarter Consolidated EBITDA (after giving effect to any acquisition or Investment consummated or to be consummated, including with the proceeds of any New Term Loan, New Revolving Loan or otherwise, on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.11) (the “Cash-Capped Incremental Facility”), by (y) an ~~aggregate~~ unlimited amount ~~not~~ (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of Term Loans made pursuant to Section 2.05(a) and (B) all voluntary repurchases of Term Loans made pursuant to the terms hereof in ~~excess~~ an amount equal to the face amount of the ~~Maximum~~ Term Loans repurchased, 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) (the “Prepayment-Based Incremental ~~Facilities Amount~~ Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the ~~aggregate and not less than $100,000,000 individually (or such~~ lesser ~~amount as~~ of (x) ~~may be approved by~~ a Dollar Amount equal to $10,000,000 (in the ~~Administrative Agent~~ case of Term Commitment Increases or New Term Facilities) or a Dollar Amount equal to $5,000,000 (in the case of New Revolving Facilities) and (y) ~~shall constitute~~ the ~~difference between the Maximum Incremental Facilities Amount and all such~~ entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments ~~obtained on~~ established pursuant to this Section 2.14 and Incremental Equivalent Debt incurred pursuant to Section 2.15, (A) unless the Borrower or the Parent (as applicable) elects otherwise, the Borrower or the Parent (as applicable) shall be deemed to have used (x) amounts under the Ratio-Based Incremental Facility (to the extent permitted by the pro forma calculation of the applicable ratio) prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility and (y) amounts under the Prepayment-Based Incremental Facility prior to the Cash-Capped Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and Incremental Equivalent Debt pursuant to Section 2.15 may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility and proceeds from any such ~~date~~incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating (x) the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts utilized under the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility and/or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt incurred pursuant to Section 7.01 (including, pursuant to clause (o) thereof)~~. Each such notice~~ ) and then calculating the incurrence under the Cash-Capped Incremental Facility and/or the Prepayment-Based Incremental Facility and (y) the incurrence under the Prepayment-Based Incremental Facility and then calculating the incurrence under the Cash-Capped Incremental Facility and (C)(i) all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility shall ~~specify~~ automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility from and after the first date ~~(each, an “Increased Amount Date”)~~ on which the Borrower ~~proposes that~~ or the Parent (as applicable) would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such Indebtedness under the Ratio-Based Incremental Facility (which, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility and/or the Prepayment-Based Incremental Facility, as applicable, by the Dollar Amount of such redesignated Indebtedness) and (ii) Parent may otherwise classify, and may later reclassify, all or any portion of Indebtedness as incurred as a Prepayment-Based Incremental Facility, Ratio-Based Incremental Facility or Cash-Capped Incremental Facility on the date of incurrence and thereafter to the extent otherwise permitted on the date of such classification (or the date of any such reclassification). Parent may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments ~~shall be effective, which shall be a date not less than ten Business Days after~~ as the ~~date on which such notice is delivered to the Administrative Agent. The~~ Borrower may ~~approach any~~ deem appropriate. (b) 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~~ participate in any New Loan Commitments may elect or decline, in its sole discretion, to ~~provide~~ participate in such increase or new facility. The Borrower may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and, solely in connection with a New ~~Loan Commitment~~Revolving Facility, with the consent of the Administrative Agent to become Lenders pursuant to a joinder agreement to this Agreement. ~~In each case~~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 shall become effective as of~~ Commitments, 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~~ Borrower must provide to the Administrative Agent the documentation providing for such New Loan Commitments~~, as applicable;~~ . (c) If (i) a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) ~~both before and after giving effect to the making of any Series of~~ a New Term ~~Loans~~ Facility or New Revolving ~~Loans~~Facility is added in accordance with this Section 2.14, ~~each~~ the Incremental Arranger and the Borrower or the Parent (as applicable)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 ~~conditions set forth~~ final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in ~~Section 7 shall be satisfied;~~ a Term Loan Tranche or (~~iii~~ii) ~~the~~ any addition of a New ~~Loan Commitments shall be effected~~ Term Facility or New Revolving Facility, in each case, pursuant to ~~one or more Joinder Agreements~~ 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 Borrower or the Parent (as applicable) and ~~Administrative Agent~~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 and to reflect any technical changes necessary, ~~and each~~ advisable or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein pursuant to the documentation relating to such New Term Facility or New Revolving Facility. As of ~~which shall be recorded~~ the Increase Effective Date, in the ~~Register and shall be subject~~ case of an increase to an existing Term Loan Tranche, the ~~requirements~~ amortization schedule for the Term Loan Tranche then increased set forth in Section ~~5.4(d);~~ 2.07(a) (~~iv) the Borrower shall make~~ or 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~~ applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrower or the Parent (as applicable) and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to (x) add any call protection applicable to any existing Term Loan Tranche being increased and/or (y) 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 ~~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)date, such ~~interests in the Revolving Credit Loans outstanding on~~ aggregate amount to be applied to increase 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 installments ratably in accordance with ~~their Revolving Credit Commitments after giving~~ the amounts in effect immediately prior 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 theretoIncrease Effective Date. (d) ~~The terms and provisions~~ With respect to any Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Specified Event of Default (subject to Section 1.02(i)) would exist immediately after giving effect to such increase; (ii) (A) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans ~~and New~~ or Specified Refinancing Term ~~Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical~~ Loans increased pursuant to ~~one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series~~ this Section shall be no earlier than the ~~2018B Second New Term Loan~~ Latest Maturity Date ~~(or in~~ for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the ~~case of~~ longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans ~~that are~~ or Specified Refinancing ~~Commitments, no earlier than that of~~ Term Loans as applicable unless 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 Lenders are also offered by the Borrower ~~and~~ or the ~~applicable new Lenders and shall be set forth in each applicable Joinder Agreement;~~ Parent (as applicable) the same amortization amounts for the corresponding year (provided that ~~the weighted average life~~ each Term Lender will be deemed to ~~maturity of all New~~ have rejected such offer unless such 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 Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (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 (105) Business Days (or such ~~shorter~~ longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer; provided, (x) that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity of Extendable Bridge Loans/Interim Debt may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans and (y) the requirements in this clause (A) shall not apply to any Ratio-Based Incremental Facility and (B) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt and any Ratio-Based Incremental Facility, 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 unless the Term Lenders are also offered by the Borrower or the Parent (as applicable) the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have rejected such offer unless such Term Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (5) Business Days (or such longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer and (iii) except as set forth in clause (f)(iii) below with respect to All-In Yield and 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 Facility, any such New Term Facility shall have the same terms as any Term Facility and any New Revolving Facility shall have the same terms as any comparable term of any Term Facility; provided, that notwithstanding the foregoing, such terms may differ from the terms of any Term Facility so long as agreed between the Borrower or the Parent (as applicable) and the lenders providing such New Term Facility or New Revolving Facility and so long as such different terms (w) to the extent more favorable to the existing Lenders than comparable terms existing in the Loan Documents, as reasonably determined by Parent in consultation with the Administrative Agent are 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 Parent, any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility, (x) are applicable only to periods after the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness, (y) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Parent in good faith) or (z) are reasonably satisfactory to the Borrower or the Parent (as applicable), the Incremental Arranger and the Administrative Agent~~) prior~~ . Subject to the ~~date on which~~ foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders ~~under the applicable Existing Class~~ providing such increase 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 CommitmentsLoan Commitment, as applicable, ~~shall notify~~ and the ~~Administrative Agent~~ Borrower. (~~an “Extension Election”~~e) ~~on or prior~~ 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 ~~specified in such Extension Request~~ of the ~~amount~~ making of ~~its~~ such new Term Loans, ~~Revolving Credit Commitments~~and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, ~~New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ such new Loans shall be added to (and form part of) each Borrowing of ~~the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended~~ outstanding Term Loans ~~or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of~~ under such 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, Loan Tranche on a pro rata basis (based on the ~~amount~~ 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~~Loans under the Term Loan Tranche. (f) (i) Subject to the Agreed Security Principles, ~~Revolving Credit Commitments,~~ any New Revolving ~~Credit Commitment~~ Facility and New Term Facility shall rank pari passu in right of payment with the other Facilities, not be Guaranteed by any Person that is not the Borrower or ~~Extended Revolving Credit Commitment included~~ a Guarantor under each of the other Facilities, and be unsecured, secured either on a first lien “equal and ratable” basis with the other Facilities or on a “junior” basis with the other Facilities, in each ~~such Extension Election. Notwithstanding~~ case over the ~~conversion~~ same (or less) Collateral that secures the Facilities (and in each case, the application of any ~~Existing Revolving Credit Commitment (other than a~~ proceeds of the Collateral securing such New Revolving ~~Credit Commitment) into~~ Facility or New Term Facility shall, if documented in an ~~Extended Revolving Credit Commitment~~agreement that is separate from this Agreement, be subject to an Acceptable Intercreditor Agreement), but if unsecured or secured on a “junior” basis to the other Facilities, such ~~Extended~~ New Revolving ~~Credit Commitment~~ Facility or New Term Facility shall be ~~treated identically to all other Old~~ documented in an agreement that is separate from this Agreement, (ii) the New Term Facility or New Revolving ~~Credit Commitments~~ Facility, as applicable, shall, for purposes of prepayments, be treated substantially the ~~obligations of a Revolving Credit Lender~~ same as (and in any event no more favorably than) any Term Facility, unless the Borrower or the Parent (as applicable) otherwise elects (but in any event no more favorably than the existing Term Loans with 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 cot

Appears in 1 contract

Sources: Credit Agreement (Farfetch LTD)

Incremental Facilities. (a) The ~~Borrower may~~ Borrowers may, by written notice to the Administrative Agent from time to time, elect to request prior to the Term Loan Maturity Date, the establishment of (i) term loan commitments under one or more new term loan tranches (xany such term loan commitment, a “New Term Loan Commitment”; any Loan made in respect thereof, a “New Term Loan”) or (ii) one additional ~~tranches of term loans~~ revolving credit facility (~~the commitments thereto~~any such revolving commitment, a “New Revolving Loan Commitment” and together any New Term Loan Commitment, the “New ~~Term Loan~~ Commitments”~~) and/or (y) increases~~ ; any Loan made in ~~Revolving Credit Commitments (the~~ respect thereof, a “New Revolving ~~Credit Commitments~~Loan” ~~and,~~ and together with ~~the~~ any New Term ~~Loan Commitments~~Loan, the “New ~~Loan Commitments~~Loans”)) that: (i) do not exceed the Incremental Amount at the time any such New Commitment is established; provided, that New Loans may be incurred without regard to the Incremental Amount, to the extent that the proceeds from such New Term Loans are used on the date of incurrence (or substantially concurrent with the date of incurrence) of such New Term Loans to either prepay Loans in accordance with the procedures set forth in Section 2.12 or to permanently reduce commitments under a revolving credit facility permitted under Section 6.01(g) by an amount equal to the aggregate amount ~~not in excess~~ of the ~~Maximum Incremental Facilities Amount in the aggregate and~~ New Revolving Loan Commitments so provided; and (ii) are 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~~ Agent) and integral multiples of $5,000,000 in excess of that amount, or equal to the remaining Incremental Amount (~~y) shall constitute~~ or any lesser amount that is approved by the ~~difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date~~Administrative Agent). Each such notice shall specify (A) the date (each, an “~~Increased Amount~~ New Loan 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~~ 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 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~~ Commitments may elect or decline, in its sole discretion, to provide a ~~New Loan Commitment. In each case,~~ portion of such New ~~Loan Commitments~~ Commitments. Such New Commitments, as applicable, shall become effective as of ~~the applicable Increased Amount~~ such New Loan Date; provided that (i1) no ~~Default or~~ Event of Default shall exist on such ~~Increased Amount~~ New Loan Date before or after giving effect to such New ~~Loan~~ Commitments, as ~~applicable~~the case may be, except, in the case of a provision of any New Loan in connection with a Permitted Acquisition or an Acquisition, to the extent such condition is omitted by the applicable Incremental Facility Joinder Agreement; (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 Commitments; (4) the interest rate margins, original issue discount, upfront fees (if any) and interest rate floors (if any) for any New Loan 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, the Applicable Percentage with respect to the Term Loan shall be automatically increased on the New Loan ~~Commitments~~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; provided further that, if the Adjusted LIBO Rate in respect of such New Term Loan includes a floor greater than the floor applicable to the Term Loan and such floor is greater than the Adjusted LIBO Rate in effect for a 3-month interest period at such time, such excess amount (above the greater of such floor and such Adjusted LIBO Rate) shall be equated to interest rate for purposes of determining the applicable interest rate under such New Term Loan; provided further this clause (4) shall not apply to (i) any New Term Loan with a final maturity date that occurs 24 months after the Term Loan Maturity Date or later or (ii) any New Term Loan that ranks junior in right of security to the Term Loan Facility, (5) the final maturity date of any New Term Loan shall be no earlier than the Term Loan Maturity Date and such New Term Loan shall have a Weighted Average Life to Maturity no shorter than that of the remaining Term Loans; (6) all representations and warranties made in the Loan Documents shall be true and correct in all material respects immediately prior to, and after giving effect to, such New Commitments on such date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as ~~applicable~~of such earlier date; (7) the New Loans shall be senior secured obligations and shall rank pari passu with or, at the Borrowers’ option, junior in right of security to the Term Loan Facility; provided that, if such New Loans rank junior in right of security with the Term Loan Facility, (i) such New Loan will be established as a separate facility from the Term Loan Facility, and (vii) such New Loan shall be subject to an Intercreditor Agreement, (8) the New Revolving Loans will mature no earlier than the loans provided under the Revolving Credit Agreement and all other terms of any New Revolving Loans (other than pricing, maturity, financial maintenance covenants, participation in mandatory prepayments, borrowing mechanics, assignments and participations or other provisions customarily found in revolving credit facilities or asset based revolving credit facilities) shall be substantially similar to the Term Loan Facility or otherwise reasonably acceptable to the Administrative Agent, (9) with respect to mandatory prepayments of any New Term Loan, no New Term Loan shall participate on a greater than pro rata basis than the Term Loans, and (10) 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 Commitments shall become effective as of their respective New 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 Commitments that become effective on ~~an Increased Amount Date~~ a New 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)~~ . Notwithstanding the foregoing, if the ~~use of~~ proceeds of ~~such~~ any New Loan ~~Commitments is~~ will be used to consummate a Permitted Acquisition or an ~~acquisition or investment permitted under this Agreement~~Acquisition, ~~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 condition set forth in ~~clauses~~ clause (6) above that representations and warranties made in the Loan Documents shall be true and correct in all material respects immediately prior to, and after giving effect to, such New Commitments on such date may instead be limited in accordance with the terms of the applicable Incremental Facility Joinder Agreement to the accuracy in all material respects of (i~~), (ii~~) ~~and if applicable, (v), above and (B) if such New Loan Commitments~~ the Specified Representations as are ~~being used~~ referred to ~~replace or refinance Term Loans or Revolving Credit Commitments pursuant to clause (iii) of~~ in the definition of ~~Maximum Incremental Facilities Amount (~~“~~Refinancing Commitments”), the conditions set forth in clauses (i)~~ Specified Representations” and (ii) ~~above shall not apply~~any representations and warranties made by or with respect to the target, its Subsidiaries and respective businesses in the acquisition, sale or purchase documentation in connection with such Permitted Acquisition or an Acquisition as are material to the interests of the Lenders (in their capacities as such) but only to the extent that Holdings or any of its Affiliate has the right to terminate its obligations under the applicable acquisition, sale or purchase documentation or decline to consummate the applicable acquisition as a result of a breach of such representation. (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 Loan Date and ~~conditions~~in respect thereof the New 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~~ 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 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 Borrowers’ 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 1 contract

Sources: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative ~~Agent~~ Agent, elect to request (i) 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 (yii) ~~increases in~~ prior to the latest Revolving ~~Credit~~ Maturity Date at such time, an increase to the existing Revolving Commitments (any such increase, the “New Revolving ~~Credit~~ Commitments” and, together with the New Term ~~Loan~~ Commitments, the “New ~~Loan~~ Commitments”), ~~by an aggregate~~ in a principal amount ~~not in excess of the Maximum Incremental Facilities Amount in the aggregate and~~ (A) not less than $~~100,000,000~~ 50,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be reasonably approved by the Administrative Agent or ~~(y)~~ that shall constitute the ~~difference between~~ remaining available amount of New Commitments permitted to be established pursuant to and in accordance with this Section 2.24(a) after giving effect to the ~~Maximum Incremental Facilities Amount~~ aggregate amount of New Commitments established pursuant to this Section 2.24(a) after the Closing Date and ~~all such New Loan Commitments obtained on or~~ prior to such date), and integral multiples of $5,000,000 in excess thereof, and (B) not to exceed, for all New Commitments established pursuant to this Section 2.24(a), an aggregate amount equal to the greater of (1) $750,000,000 and (2) an amount equal to the Consolidated Cash Flow of the Borrower for the period of four consecutive fiscal quarters most recently ended on or prior to the date on which such New Commitments are established multiplied by 25% (less, in the case of each of clause (1) and clause (2), the aggregate principal amount of any New Commitments established prior to such date), subject to any restrictions thereon set forth in Sections 6.01 and 6.02. 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~~ ; 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 and in accordance with 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 (i1) 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, 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 4.01 shall be satisfied; (~~iii~~3) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Sections 6.11 and 6.12 as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Sections 5.04(a) and 5.04(b) immediately after giving effect to such New 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 ~~Borrower~~ Borrower, the Lenders providing such New Commitments 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; (iv5) the Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.16 in connection with the New ~~Loan~~ Commitments, as applicable; ~~and~~ (v6) the Borrower shall deliver or cause to be delivered any customary and appropriate legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction; and (7) the requirements set forth in Section 9.17 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~~ other 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 applyDocuments. (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~~ 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, (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~~applicable purposes and as of the Increased Amount Date, a Revolving ~~Credit~~ Loan and (ciii) each New Revolving ~~Loan~~ Lender shall become a Lender as of the Increased Amount Date 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 Commitments and New Term Lenders of such Series or the New Revolving Commitments and New Revolving Lenders, as applicable, and (ii) in the case of each notice to any Lender with Revolving Loans, the respective interests in such Lender’s Revolving Loans subject to the assignments contemplated by Section 2.24(b). (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 Term Loans as of the ~~existing Initial Term Loans~~Increased Amount Date; ~~provided~~ provided, however, that (i) the New Term 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 (x) 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 Class of Term Loans having the Latest Maturity Date of all Classes of Term Loans and (y) the applicable New Term Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan~~ Latest Maturity Date ~~(or in the case~~ of ~~New Term Loans that are Refinancing Commitments, no earlier than that~~ all Classes 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 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~~ As of the Increased Amount Date, the terms and provisions of the New Revolving Loans and New Revolving ~~Credit~~ Commitments shall be such that they shall be identical to the ~~2020~~ extent applicable to those of the 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~~ as in effect on 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 Increased Amount Date with respect to such New Revolving ~~Credit~~ Loans and New Revolving 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~~Agent and the Borrower, 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 1 contract

Sources: Credit Agreement (NRG Energy, Inc.)

Incremental Facilities. (a) ~~The~~ On or prior to December 31, 2008, the Borrower ~~may~~ may, by written notice to the Administrative ~~Agent elect to~~ Agent, request the establishment of one or more new term loan commitments (~~x) additional tranches of~~ any term ~~loans (the~~ loan commitments ~~thereto, the~~ established pursuant to this Section 2.26 being referred to as “New Term Loan Commitments”) ~~and/or (y) increases~~ to be funded on or prior to December 31, 2008, 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~~ $150,000,000 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 an integral multiple of $5,000,000 in excess thereof. On or after the date on which the first Compliance Certificate is delivered after the Initial Phase II Calculation Date (~~y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such~~ and, with respect to any New ~~Loan Commitments obtained on or~~ Revolving Credit Commitments, prior to the Revolving Credit 2 Termination Date), the Borrower may by written notice to the Administrative Agent request (i) an increase to the existing Revolving Credit 2 Commitments (any such ~~date~~increase, the “New Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”), in an amount not in excess of $300,000,000 in the aggregate and not less than $50,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent) or an integral multiple of $5,000,000 in excess thereof. 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~~ 15 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 the 2014 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 the 2014 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) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 7.1 as of the most recent Quarterly Date of the Borrower after giving pro forma effect to such New Revolving Credit Commitments or New Term Loan Commitments, fully drawn, as applicable, on such date; (4) the New Revolving Credit Commitments or New Term Loan ~~Commitments~~ Commitments, as applicable, 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 Revolving Credit Lender or New Term Loan Lender, ~~and~~ as applicable, each of which shall be recorded in the Register and shall be subject to the requirements set forth in ~~Section 5.4(d~~Sections 2.20(f) and 2.20(g); (iv5) the Borrower shall make any payments required pursuant to Section ~~2.11~~ 2.21 in connection with the New Revolving Credit 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 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~~ . Such New Revolving ~~Loan Lenders and/or~~ Credit Commitments or New Term Loan ~~Lenders,~~ Commitments shall become effective 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 Increased Amount ~~(“Refinancing Commitments”), the conditions set forth in clauses (i) and (ii) above shall not apply~~Date. (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~~ 2 Lenders 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~~ Credit Lenders shall purchase from each of the ~~Lenders with~~ Revolving Credit ~~Commitments~~2 Lenders, at the principal amount thereof ~~and in the applicable currency(ies~~(together with accrued interest), such interests in the Revolving Credit 2 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 2 Loans will be held by existing Revolving Credit 2 Lenders and New Revolving ~~Loan~~ Credit Lenders ratably in accordance with their Revolving Credit 2 Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit 2 Commitments, (bii) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit 2 Commitment and each Loan made thereunder (a “New Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit 2 Loan and (ciii) each New Revolving ~~Loan~~ Credit 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 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 Administrative Agent shall notify the Lenders promptly upon receipt of each notice delivered by the Borrower pursuant to the first two sentences of Section 2.26(a) and in respect thereof (i) the New Revolving Credit Commitments or the Series of New Term Loan Commitments, as applicable, and (ii) in the case of each notice to any Revolving Credit 2 Lender, the respective interests of such Revolving Credit 2 Lender in the Revolving Credit Loans, in each case subject to the assignments contemplated by this Section 2.26. (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 terms and provisions of the ~~existing Initial~~ Term B Loans~~; provided that~~ . The terms and provisions (including applicable rates of interest) of the New Revolving Credit Loans shall be identical to the Revolving Credit 2 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 weighted average life to maturity of the Term B Loans, (ii) the applicable Scheduled New Term Loan ~~Maturity~~ Termination Date of each Series shall be no earlier than the ~~2018B Second New~~ Scheduled Term B Loan ~~Maturity Date~~ Termination 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~~ 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~~ 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 B Loans ~~being refinanced) and (iii) all other terms~~ immediately prior to the incurrence of any such New Term Loans, the interest rates applicable to the existing Term B Loans shall increase to provide the existing Term B Loan Lenders the same weighted average interest rate provided 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)~~Loan Lenders. 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~~2.26. (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~~ 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 Tranche C Term Loans to the extent they are secured by the Collateral on a pari passu basis with the Tranche C 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~~ Tranche C 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 Tranche C Term Loans ~~shall be reasonably acceptable~~ plus 0.25% per annum unless the interest rate margin with respect to the ~~Administrative Agent (~~Tranche C 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 Tranche C 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 1 contract

Sources: Credit Agreement (Sealy Mattress CORP)

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 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 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 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 (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 LIBOR Loans or ABR Loans in respect of such New 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%; (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 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~~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 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 coof

Appears in 1 contract

Sources: First Lien Credit Agreement (HireRight GIS Group Holdings, LLC)

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 ~~Borrower~~ Company may by written notice to the Administrative Agent elect to ~~request~~ (i) increase the ~~establishment of one or more~~ Commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase, ~~the~~ a “New ~~Term~~ Revolving Credit Loan ~~Commitments~~Commitment”) ~~and/or~~ or (yii) ~~increases in Revolving Credit~~ establish an additional tranche of Commitments (the “Additional Revolving Credit Commitments”, together with any New Revolving Credit ~~Commitments” and, together with the New Term~~ Loan ~~Commitments~~Commitment, the “~~New Loan~~ Incremental Commitments”) in an amount that may be incurred in compliance with this Agreement (including, without limitation, Section 10.2), by each of which 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~~ 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~~ Company proposes that the ~~New Loan Commitments~~ Incremental Commitment) 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~~Agent (or such shorter notice period as the Administrative Agent may agree in its sole discretion). ~~The Borrower~~ Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided, further, that: (i) after giving effect to such Incremental Commitment, the aggregate amount of all Incremental Commitments (including Incremental Commitments established prior to such Increased Amount Date) shall not exceed $1,000,000,000; (ii) before and after giving effect to such Incremental Commitments, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date; provided that with respect to Incremental Commitments established in connection with a Limited Condition Acquisition, this condition shall be limited to the absence of an Event of Default under clause (a), (b) or (g) (with respect to the Company) of Section 11.1; (iii) before and after giving effect to such Incremental Commitments, all representations and warranties made by any Credit Party contained in this Agreement or in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of such Increased Amount Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of said earlier date); provided that with respect to Incremental Commitments established in connection with a Limited Condition Acquisition, only the Specified Representations and “specified acquisition agreement representations” shall be required to be true and correct in all material respects; (iv) such Incremental Commitment may ~~approach~~ be provided by any Lender or ~~any~~ other Person (~~other than a natural person~~each, an “Incremental Lender”) to whom the Company proposes provide ~~all or a~~ any portion of ~~the New Loan~~ such 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~~. 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; (iiiv) the ~~New Loan~~ Incremental Commitments shall be effected pursuant to one or more joinder agreements (collectively, for any Incremental Commitment, a “Joinder ~~Agreements~~ Agreement”) in form and substance satisfactory to the Administrative Agent which shall be executed and delivered by the ~~Borrower~~ Borrowers, each Incremental 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; and (ivvi) the ~~Borrower~~ Administrative Agent 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~~ have received legal opinions or and other documents reasonably requested by Administrative Agent in connection with any such ~~transaction. Any New Term Loans made on an Increased Amount Date shall~~ transaction or required to be ~~designated, a separate series (a “Series”) of New Term Loans for all purposes of this~~ delivered under the applicable Joinder Agreement; ~~provided~~ including an acknowledgment from any Guarantor 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~~ Guaranty will continue in full force 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 applyeffect. (b) On any Increased Amount Date on which ~~New Revolving Credit~~ any Incremental Commitments are ~~effected~~effective, ~~subject to the satisfaction of the foregoing terms and conditions, (a)~~ each ~~of the Lenders with Revolving Credit Commitments shall assign to each~~ Incremental Lender ~~with~~ that is not then 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~~ hereunder, subject to the ~~New Revolving Credit~~ receipt of the consents that would be required under Section 13.7(b) if such Lender were to become a Lender hereunder via assignment (and, in the case of an Incremental Commitment ~~and all matters relating thereto~~to be provided by an existing Lender, such Lender’s applicable Commitment shall be increased by the amount of its Incremental Commitment). (c) ~~On any~~ The Administrative Agent shall notify the Lenders promptly upon receipt of Borrowers’ notice of each Increased Amount Date ~~on which any New Term Loan~~ and, in respect thereof, the Incremental 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~~Incremental Lenders. (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~~ Revolving Credit Loan ~~Maturity Date of each Series~~ Commitments shall be ~~no earlier than~~ the ~~2018B Second New Term Loan Maturity Date (or in~~ same as the ~~case of New Term Loans that are Refinancing Commitments, no earlier than that of 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 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 Additional Revolving Credit Commitments shall be ~~identical~~ on terms and conditions substantially the same as the Commitments (except, in each case, with respect to (x) any additional upfront or similar fees that may be payable to the ~~2020~~ Lenders participating in New Revolving Credit ~~Loans and the 2020~~ Loan Commitments or Additional Revolving Credit ~~Commitments~~Commitments and (y) covenants, terms or other provisions applicable only to the periods after the Latest Maturity Date); provided that ~~New~~ the maturity date of any Incremental Revolving Credit ~~Commitments~~ Loan may ~~provide for (a) a commitment termination date that is~~ be 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~~ but shall not be earlier than) the Revolving Credit ~~Commitments being refinanced) and (b) fees and pricing as agreed between the Borrower~~ Facility Maturity Date and the ~~Lenders providing such New~~ Incremental Commitments and the Incremental Revolving Credit ~~Commitments~~Loan shall rank pari passu with, or junior to, in right of payment with the Existing Revolving Credit Loans. (e) ~~Each Joinder Agreement may, without~~ Upon the ~~consent~~ effectiveness of any ~~other Lenders, effect such amendments~~ New Revolving Credit Loan Commitment pursuant to this ~~Agreement~~ Section 2.15, each Lender with a Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Lender in respect of such increase, and each such Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such deemed assignment and assumption of participations, the ~~other Credit Documents as may be necessary or appropriate, in the opinion~~ percentage of the ~~Administrative Agent, to effect the provision of this Section 2.14~~aggregate outstanding L/C Participations held by each Lender (including each such Incremental Lender) will reflect such Lender’s Commitment Percentage. (if) The ~~Borrower~~ Borrowers may at any time and from time to time request that all or a portion of the ~~Term Loans~~ 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~~ of such Existing Revolving Credit Commitments 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”) by no more than one (1) year and to provide for other terms consistent with this Section ~~2.14(f~~2.15(f); provided that (a) the Commitments of any Class shall be extended pursuant to this Section 2.15(f) no more than twice prior to the termination of the Commitments of such Class, (b) after giving effect to an Extension Amendment, the remaining tenor of such Class of Commitments shall not exceed five (5) years. In order to establish any Extended Revolving Credit Commitments, the ~~Borrower~~ Company 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”~~, 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 Borrowers), 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 Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Latest Maturity Date, in each case, to the extent provided in the applicable Extension Amendment; provided, however, that (A) subject to the proviso in the immediately preceding sentence, 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) B) (Ai) the interest margins with respect to the Extended Revolving Credit Commitments ~~may~~ shall be ~~higher or lower than~~ the same as the interest margins for the Specified Existing Revolving Credit Commitments and/or (Bii) 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~~ the margins contemplated by the preceding clause (AB)(i) and (zC) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments ~~may~~ shall be ~~higher or lower than~~ the ~~Revolving Credit~~ same as the 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~~2.15(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~~ Extended Revolving Credit Commitments shall be made on a pro rata basis with all other ~~Old~~ Extended Initial 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~~ the Commitments and the ~~Revolving Credit~~ Loans related to such Commitments set forth in Section ~~13.6~~13.7. 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 of such Class so established on such date). (~~iii~~i) ~~The Borrower~~ Extended Revolving Credit Commitments shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, notwithstanding anything to the contrary set forth in Section 13.2, 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 Borrowers, 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 $10,000,000. No Extension Amendment shall extend the ~~applicable Extension Request~~ Initial Revolving Credit Commitments unless Lenders holding at least ~~ten~~ 50% of the aggregate Initial Revolving Credit Commitments shall have elected to extend such Commitments. (10ii) ~~Business Days (or such shorter period as may be agreed by the Administrative Agent) prior~~ Notwithstanding anything to the contrary contained in this Agreement, on any date on which ~~Lenders under~~ any existing Class is converted to extend the ~~applicable Existing~~ related scheduled maturity date(s) in accordance with clause (f)(i) of this Section 2.15, in the case of the existing Commitments of each Extending Lender, the aggregate principal amount of such existing 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 the Extended Revolving Credit Commitments shall be established as a separate Class ~~or Existing Classes are requested to respond.~~ of Loans (together with any other Extended Revolving Credit Commitments of such Class so established on such date). (g) 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~~ existing Class or ~~Existing~~ existing Classes 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~~ Loans of the ~~Existing~~ existing Class or ~~Existing~~ 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~~ existing Class or ~~Existing~~ existing Classes subject to Extension Elections exceeds the amount of Extended ~~Term Loans or Extended~~ Revolving Credit ~~Commitments, as applicable,~~ Loans requested pursuant to the Extension Request, ~~Term~~ Loans ~~or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments~~ of the ~~Existing~~ existing Class or ~~Existing~~ existing Classes subject to Extension Elections shall be converted to Extended ~~Term Loans or Extended~~ Revolving Credit ~~Commitments, as applicable~~Loans, 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~~. Notwithstanding the conversion of any Existing Revolving Credit Commitment~~ . (~~other than a New Revolving Credit Commitment~~h) 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 Any Joinder Agreement or Extension Amendment may provide for additional terms and/or additional amendments other than those contemplated above (any such additional amendment, a “Section 2.15 Additional Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.15 Additional Amendments are within the ~~Swingline Maturity Date and/or~~ requirements of Section 2.15(d) or Section 2.15(f)(i), as applicable, and do not become effective prior to the time that such Section 2.15 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Revolving ~~Letter~~ Credit Loan Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Revolving Credit ~~Maturity Date~~ Commitments provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be ~~extended~~ required in order for such Section 2.15 Additional Amendments to become effective in accordance with this Section 2.15. (i) The Administrative Agent and the ~~related obligations~~ Lenders hereby consent to ~~make Swingline Loans and issue~~ the consummation of the transactions contemplated by this Section 2.15 (including (i) payment of any interest, fees, or premium in respect of any Extended Revolving ~~Letters of~~ Credit Commitments on such terms as may be coset forth in the relevant Extension Amendment and (ii) the effectiveness of Incremental Commitments and the making of Loans subject only to the conditions in this Section 2.15 (and any resulting re-allocation of Obligations hereunder)) 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 Commitment, Incremental Commitment or any other transaction contemplated by this Section 2.15.

Appears in 1 contract

Sources: Revolving Credit Agreement (NXP Semiconductors N.V.)

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 B Term Loan Commitments (the ~~commitments thereto, the “~~"New Tranche B Term Loan Commitments”") and/or (y) ~~increases in~~ new Revolving Credit Commitments (the “"New Revolving ~~Credit~~ Loan Commitments” " 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 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~~ 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; (ii2) both before and after giving effect to the making of any Series of New Trance B Term Loans or New 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 B Term Loans made on an Increased Amount Date shall be ~~designated,~~ designated a separate series (a “"Series”") of New Tranche B Term Loans for all ~~purposes~~ purpose 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 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 Tranche B Term Loan Lender”") of any Series shall make a Loan to the Borrower (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~~ provided, however, that (i) the applicable ~~New Term Loan Maturity Date~~ 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~~ Revolving Credit Loans ~~being refinanced)~~ and ~~mandatory prepayment rights (other than scheduled amortization) of~~ the ~~New~~ Tranche B 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 Tranche B Term Loans of each Series shall be determined by the US 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 1 contract

Sources: Credit Agreement (Rockwood Specialties Group 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 Term Loans (any such Terms Loans, “Incremental Term Loans”) or Revolving Commitments, as applicable, by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Increased Facility Closing Date and (iii) in the case of Incremental Term Loans, (x) ~~additional tranches of term loans (~~the ~~commitments thereto~~applicable Incremental Term Maturity Date, ~~the “New Term Loan Commitments”) and/or~~ (y) ~~increases in Revolving Credit Commitments (~~the ~~“New Revolving Credit Commitments” and, together with the New~~ amortization schedule for such Incremental 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 effectiveLoans, which shall ~~be a date not less than ten Business Days after~~ comply with Section 2.3(b), and (z) the ~~date on which~~ Applicable Margin for 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 Term Loans); ~~provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline~~provided, ~~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 (ia) at the time of each such request and upon the effectiveness of each Incremental Term Loan or increase in Revolving Commitments no Default or Event of Default has occurred and is continuing or shall ~~exist~~ result therefrom; (b) if the total yield (calculated for both the Incremental Term Loans and the Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below but excluding any arrangement, underwriting or similar fee paid by the Borrower)) in respect of any Incremental Term Loans exceeds the total yield for the existing Term Loans by more than 0.50% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the Term Loans shall be increased so that the total yield in respect of such ~~Increased Amount Date before or~~ Incremental Term Loans is no higher than the total yield for the existing Term Loans plus 0.50%; (c) on a Pro Forma Basis after giving effect to ~~such New Loan~~ the incurrence of any Incremental Term Loans or increased Revolving Commitments, ~~as applicable;~~ (~~ii) both before~~ assuming in the case of an increase in the Revolving Commitments the full drawing thereunder and after giving effect to other permitted pro forma adjustment events and any permanent repayment of Indebtedness after the ~~making of any Series of New Term Loans or New Revolving Loans, each~~ beginning of the ~~conditions set forth in Section 7 shall be satisfied;~~ relevant determination period but prior to or simultaneous with borrowing), (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); (ivi) the Borrower ~~shall make any payments required pursuant to Section 2.11~~ is in ~~connection~~ compliance with the ~~New Loan Commitments, as applicable;~~ financial covenants in Section 7.1 and (vii) the ~~Borrower~~ Consolidated Senior Secured Debt Ratio 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 Agreementnot exceed 2.00:1.00; provided that ~~(A) if the use~~ for such calculation, no portion 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 any Incremental Term Loans or Revolving ~~Credit~~ Loans borrowed under such increased Revolving Commitments shall be netted against the Indebtedness of the Borrower and its Restricted Subsidiaries; and (d) on and as of the time of each such request and upon the effectiveness of each Incremental Term Loan or increase in Revolving Commitments each of the representations and warranties made by any Loan Party in or pursuant to ~~clause (iii) of~~ the ~~definition of Maximum Incremental Facilities Amount (“Refinancing Commitments”)~~Loan Documents shall be true and correct in all material respects. Notwithstanding the foregoing, ~~the conditions set forth in clauses~~ (i) the aggregate amount of borrowings of Incremental Term Loans and incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed $75,000,000 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, each increase effected pursuant 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~~ paragraph shall be in 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 minimum 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 Amendmentat least $10,000,000. No Lender shall have any obligation to ~~agree~~ participate in any increase described in this paragraph unless it agrees to ~~have any of~~ do so in 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 convertedsole discretion. (iib) ~~The Borrower may at any time and from time to time request that all~~ Any additional bank, financial institution or ~~a portion~~ other entity which, with the consent of the ~~Revolving Credit Commitments~~Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any ~~Extended Revolving Credit Commitments and/or any~~ transaction described in Section 2.24(a) shall execute a New ~~Revolving Credit Commitments, each existing at the time of such request~~ Lender Supplement (each, an a “~~Existing Revolving Credit Commitment” and any related revolving credit loans thereunder~~New Lender Supplement”), substantially in the form of Exhibit I, whereupon such bank, financial institution or other entity (a “~~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~~New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be ~~converted~~ bound by and entitled to ~~extend~~ the ~~termination date thereof and~~ benefits of this Agreement. (c) Unless otherwise agreed by the ~~scheduled maturity date(s) of any payment of principal~~ Administrative Agent, on each Increased Facility Closing Date with respect to ~~all or a portion of any principal amount of Loans related to such Existing~~ the 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 CommitmentsFacility, the Borrower shall ~~provide a notice~~ borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the ~~Administrative Agent~~ amount of each Type of Loan (~~who shall provide a copy~~ and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such ~~notice to~~ 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 ~~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~~ each such Type or Eurodollar Tranche requested to be ~~established, which terms~~ so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall ~~be identical to those~~ equal the Eurodollar Base Rate then 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~~ Eurodollar Loans of the ~~final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than~~ other Lenders in the ~~final maturity dates~~ same Eurodollar Tranche (or, until the expiration of the ~~Specified Existing Revolving Credit Commitments~~then-current Interest Period, ~~(y)~~such other rate as shall be agreed upon between the Borrower and the relevant Lender. (Ad) 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 Notwithstanding anything to the contrary in this ~~Section 2.14(f) or otherwise~~Agreement, ~~(1)~~ each of 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~~ parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be ~~made on a pro rata basis with all other Old Revolving Credit Commitments~~ amended to the extent (but only to the extent) necessary to reflect the existence and ~~(2) assignments and participations~~ terms of ~~Extended Revolving Credit Commitments and Extended Revolving Credit~~ the Incremental Term 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 Requestevidenced thereby. 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~~ deemed amendment may be ~~agreed~~ effected in 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 1 contract

Sources: Credit Agreement (SunCoke Energy, Inc.)

Incremental Facilities. ~~(a) The Borrower~~ Company may by written notice to Administrative Agent and Syndication 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~~ $15,000,000 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~~ $5,000,0000 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~~ 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 Administrative Agent and 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~~ 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~~ New Term ~~Loans or New Revolving~~ Loans, each of the conditions set A&R FIRST LIEN CREDIT AND GUARANTY AGREEMENT 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~~2.20(c); (iv5) ~~the Borrower~~ Company 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~~ 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 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~~ 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 of 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 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~~ Tranche C Term Loans, including, without limitation, with respect to amortization, interest 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) maturity. 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~~2.24. (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 (American Reprographics CO)

Incremental Facilities. (a) The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more series of 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 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)150,000,000. 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~~ 10 Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and the identity of each Lender or ~~any~~ Affiliate or Related Fund of an Lender or other Person that is consented to by the Administrative Agent (~~other than~~ each, a ~~natural person~~“New Term Loan Lender”) to ~~provide all or a~~ whom the Borrower 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 of, and the ~~applicable~~ New Term Loans funded on, such Increased Amount Date; ~~provided that~~ provided: (i) no Default or Event of Default shall ~~exist~~ have occurred and be continuing on such Increased Amount Date before or ~~after giving effect to~~ would result from the effectiveness or funding of 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,~~ shall be conditioned on satisfaction of each of the conditions set forth in Section 7 5.1 (with the exception of Section 5.1(b) (with any reference thereon to “Closing Date” being deemed to refer instead to the Increased Amount Date)); provided that, with respect to any financial statements required to be delivered thereunder, such financial statements shall be ~~satisfied;~~ of the most recent Fiscal Quarter ended prior to the Increased Amount Date for such New Term Loan; (iii) at the time such New Term Loan is made, the Borrower’s ratio of PV 10 Value to Consolidated Total Debt shall be at least 2.0 to 1.0, determined on a Pro Forma Basis; (iv) at the time such New Term Loan is made, the Interest Coverage Ratio for the four fiscal quarters for which financial statements have been delivered pursuant to Section 7.1 would have been at least 2.5 to 1.0, determined on a Pro Forma Basis; (v) the New Term Loan Commitments shall be ~~effected~~ established pursuant to one or more agreements in form and substance satisfactory to the Administrative Agent (each such agreement, a “Joinder ~~Agreements~~ Agreement”) and 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~~2.6(c) and (d); 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~~vi) 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 pursuant to a New Term Loan Commitment on an Increased Amount Date shall be ~~designated,~~ designated a separate series (any such series of New Term Loans, together with the Original Loans, each, a “Series”) of ~~New Term~~ Loans for all purposes of this Agreement~~; provided that~~ . All Loans (~~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~~ including any Original Loans and ~~the New Revolving Loan Lenders and/or~~ any New Term ~~Loan Lenders,~~ Loans) shall rank pari passu in right of payment and as ~~applicable, customary “SunGard” limited conditionality shall apply~~ to ~~the effectiveness~~ benefits 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 applyCollateral. (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 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 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 New Term Loan Commitments and the New Term Loan Lenders of such Series. 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 Loans. In any event (A) 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 ~~existing Initial Term~~ Loans~~; provided that~~ , (iB) 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)~~ Original Loans, 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 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~~ shall not be greater than the highest interest rate that ~~differ from~~ may, under any circumstances, be payable with respect to Loans plus 0.25% per annum unless the ~~existing Term Loans shall be reasonably acceptable~~ interest rate with respect to the ~~Administrative Agent (~~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~~Lenders (other than the new Lenders providing a New Term Loan Commitment pursuant thereto), 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 establish, or to effect the ~~provision~~ relevant increase in, the New Term Loan Commitments contemplated by the provisions 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 1 contract

Sources: Term Loan Agreement (Venoco, Inc.)

Incremental Facilities. (a) ~~The Borrower~~ Company may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (any such increase, the “New Revolving 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~~ in amounts that (i) are not in excess of the ~~Maximum~~ Incremental ~~Facilities~~ Amount ~~in the aggregate~~ and (ii) are individually not less than $~~100,000,000 individually~~ 50.0 million (or ~~such~~ any lesser amount ~~as (x) may be~~ that is approved by the Administrative ~~Agent~~ Agent, or (ythat constitutes the then remaining portion of the Incremental Amount) ~~shall constitute the difference between the Maximum Incremental Facilities Amount~~ and ~~all such New Loan Commitments obtained on or prior to such date)~~are in integral multiples of $5.0 million 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 Commitments or the New 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 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 Company proposes any portion of ~~the~~ such New Revolving 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 Commitments or the 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~~ Such New Revolving Commitments or 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 Revolving 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) after giving pro forma effect to the funding of loans under such New Revolving Commitments or New Term Loan Commitments and the application of the proceeds thereof as if they had occurred on the last day of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered to the Lenders (assuming for this purpose that all loans committed thereunder had been fully funded on such day) and giving pro forma effect to all acquisitions or dispositions made by Company and its Subsidiaries at any time during the four fiscal quarter period ending on such day or at any time thereafter as if such acquisition or disposition had been completed on the first day of the four fiscal quarter period, Company shall be in compliance with the Financial Performance Covenant as of such day (and for this purpose the Agents, New Revolving Loan Lenders and New Term Loan Lenders shall be entitled to rely conclusively upon a certificate as to satisfaction of the condition set forth in this clause (3) delivered to them by Company’s Chief Financial Officer in connection with the delivery or funding of such New Revolving Commitments or New Term Loan Commitments); (4) the New Revolving Commitments or New Term Loan ~~Commitments~~ Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by ~~the Borrower and~~ Company to 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~~Sections 2.20(c), 2.20(e) and 2.20(f); (iv5) ~~the Borrower~~ Company shall make any payments required pursuant to Section ~~2.11~~ 2.18(c) in connection with the New Revolving Commitments or New Term Loan Commitments~~, as applicable~~; and (v6) ~~the Borrower~~ Company shall deliver or cause to be delivered any legal ~~opinions~~ opinions, amendments to security documents or such other documents reasonably requested by Administrative Agent (including at the direction of the Requisite Lenders) 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. (cx) 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) 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 coand

Appears in 1 contract

Sources: Credit and Guaranty Agreement

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 Permitted 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~~New Term Loan 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~~ 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 New Term Loan, if the Effective Yield for LIBOR 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 LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans ~~being refinanced) and (iii) all other terms applicable~~ 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 ~~each Series that differ from~~ this proviso, 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 by its execution~~ it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, such financial maintenance covenant shall also be added for the benefit of the ~~applicable Joinder Agreement). The terms~~ corresponding existing Loans, and ~~provisions~~ no consent shall be required by the Administrative Agent or any of the ~~New Revolving~~ Lenders if such financial maintenance covenant is added for the benefit of any corresponding Loans ~~and New Revolving Credit Commitments~~ remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be ~~identical to~~ required by 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 Administrative Agent or any of the ~~2020 Revolving Credit Commitments (~~Lenders if any covenants or in other provisions are only applicable after 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~~ 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 (taken as a whole) (as determined in good faith by the Borrower) 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 below in paragraph (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 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~~ 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~~Loans, 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 final 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 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. (v) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Term Loan 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). (vi) 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: Second Lien Credit Agreement (Bountiful Co)

Incremental Facilities. (a) The Borrower ~~may~~ may, by written notice to the Administrative ~~Agent~~ Agent, elect to request prior to the ~~establishment~~ Commitment Termination Date, an increase to the then-existing Revolving Commitments of ~~one or more~~ any Class (~~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~~ 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 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) after giving effect to ~~the making of any Series of New Term Loans or~~ such New Revolving ~~Loans~~Commitments, ~~each~~ the Borrower and its Subsidiaries shall be in pro forma compliance with Sections 7.10 and 7.11 as of the ~~conditions set forth in~~ last day of the most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section ~~7 shall be satisfied~~6.01; (~~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 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) 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 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 ~~existing~~ thenexisting 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 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~~ . The Administrative Agent shall notify Lenders promptly upon receipt of the ~~Extended Term Loans to be established, which shall be identical to the Term Loans~~ Borrower’s notice of ~~the Existing Term Loan Class from which they are to be converted except~~ each Increased Amount Date and in respect 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 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~~ARTICLE 3 TAXES, 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 coYIELD PROTECTION AND ILLEGALITY

Appears in 1 contract

Sources: Credit Agreement (Employers Holdings, Inc.)

Incremental Facilities. (a) The ~~Borrower~~ Company 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~~ in an amount that may be incurred in compliance with this Agreement (~~y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments” and~~including without limitation, ~~together with the New Term Loan Commitments, the “New Loan Commitments”~~Sections 10.1 and 10.3), by each of which 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~~ 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 (x) 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~~ 10 Business Days after the date on which such notice is delivered to the Administrative ~~Agent. The Borrower may approach any~~ Agent and (y) the identity of each Lender or ~~any~~ other Person (~~other than~~ each, a ~~natural person~~“New Term Loan Lender”) to ~~provide all or a~~ whom the 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~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided ~~that~~ that: (i) before and after giving effect to such New Term Loan Commitments, no Default or Event of Default shall ~~exist~~ have occurred and be continuing on such Increased Amount ~~Date~~ Date; (ii) before or and after giving effect to such New Term Loan Commitments, all representations and warranties made by any Credit Party contained in this Agreement or in the other Credit Documents shall be true and correct in all material respects with the same effect as ~~applicable;~~ though such representations and warranties had been made on and as of such Increased Amount Date (iiexcept where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of said earlier date and except for the representation in Section 8.9(b) ~~both before and after giving effect~~ of this Agreement which shall be deemed to relate to the ~~making of any Series of New Term Loans or New Revolving Loans, each~~ matter referred to therein on and as of the ~~conditions set forth in Section 7 shall be satisfied;~~ Tranche A-2 Signing Date); (iii) the New Term Loan Commitments shall be effected pursuant to one or more joinder agreements (collectively, for any New Term Loan Commitments and New Term Loans, a “New Term Loan Joinder ~~Agreements~~ Agreement”) in form and substance satisfactory to the Administrative Agent which shall be executed and delivered by Borrowers, the ~~Borrower~~ New Term Loan 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; (iv) the ~~Borrower~~ Administrative Agent 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~~ have received legal opinions or and other documents reasonably requested by Administrative Agent in connection with any such ~~transaction. Any~~ transaction or required to be delivered under the applicable New Term Loan Joinder Agreement, provided that any acknowledgement of the Guaranty required to be delivered by any Guarantor and any confirmation that the Security Documents that secure the obligations of the Borrowers hereunder will continue in full force and effect, together with duly executed copies of any amendments or replacements of Security Documents that may be required shall be a condition subsequent to the applicable Increased Amount Date; and (v) The Administrative Agent shall have received a Notice of Borrowing in respect of the New Term Loans ~~made on an Increased Amount Date shall be designated, a separate series (a “Series”)~~ in writing meeting the requirements of ~~New Term Loans for all purposes~~ Section 2.3 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~~ Lender shall make a Loan to the ~~Borrower~~ Borrowers (a “New Term Loan”) in an amount equal to its New Term Loan Commitment ~~of such Series~~either (i) to the extent expressly provided for in the applicable New Term Loan Joinder Agreement with respect thereto, ~~and~~ by tendering for exchange therefor non-cash consideration in an amount determined in the manner provided in the New Term Loan Joinder Agreement, to the extent applicable, or (ii) ~~each~~ by funding cash in the amount provided in the New Term Loan Joinder Agreement and in the manner described in Section 2.4 hereof. 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) Administrative Agent shall notify Lenders promptly upon receipt of Borrowers’ notice of each Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments may be designated Loans of ~~any Series shall be,~~ an existing Tranche with terms identical thereto or designated as a new Tranche with terms except as otherwise set forth herein or in the applicable New Term Loan Joinder Agreement, identical to ~~one~~ the Tranche A-1 Loans or ~~more Classes of~~ the ~~existing Initial Term~~ Tranche A-2 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 longer of the weighted average life to maturity of (x) the ~~2018B Second~~ existing Tranche A-1 and (y) the existing Tranche A-2 Loans, (ii) the applicable New Term ~~Loans (or in~~ Loan Maturity Date shall be no earlier than the ~~case of New Term Loans that are Refinancing Commitments~~Initial Maturity Date, ~~no shorter than that of the Term Loans being refinanced)~~ and (iii) ~~all other terms~~ the Weighted Average Yield applicable to the New Term Loans ~~of each Series that differ from the existing Term Loans~~ shall be ~~reasonably acceptable~~ determined by Borrowers and the applicable new Lenders and shall be set forth in the relevant New Term Loan Joinder Agreement. Notwithstanding anything herein 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 Commitmentscontrary, 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 may be amended to effect such changes as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the ~~provision~~ provisions of this Section ~~2.14.~~ 2.14 (~~i) The Borrower may at~~ including, as to 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 New 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~~ final maturity and amortization schedule thereof, the interest rate thereon and the treatment thereof for purposes of prepayments and voting), which amendment (which may be incorporated into the applicable New Term Loan ~~Class from which such Extended~~ Joinder Agreement(s)) shall be executed by the Borrowers, the Administrative Agent and the applicable New Term ~~Loans were converted,~~ Loan Lender(s) (but not any other Lenders). (l) Section 4.3 of the Credit Agreement is amended and restated in ~~each case~~ its entirety to read in full as ~~more particularly set forth in paragraph~~ follows: (iva) The Tranche A-1 Commitment shall terminate upon the earlier of ~~this Section 2.14(f~~(i) ~~below)~~ the funding thereof on the Funding Date and (yii) 5:00 p.m. (ALondon time) on the last day of the Availability Period. (b) The Tranche A-2 Commitment shall terminate upon the earlier of (i) the ~~interest margins with respect to~~ funding thereof on the ~~Extended Term Loans may be higher or lower than~~ Tranche A-2 Funding Date and (ii) 5:00 p.m. (London time) on the ~~interest margins for~~ last day of the ~~Term Loans of such Existing~~ Tranche A-2 Availability Period. (c) Each New Term Loan ~~Class and/or (B) additional fees may be payable to~~ Commitment shall terminate at 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~~ time 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 convertedJoinder Agreement. (iim) ~~The Borrower may at any time and from time~~ Schedule 1.1(e) to ~~time request that all or~~ this Agreement is added as 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”new Schedule 1.1(e) 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)Agreement. (~~iii~~n) ~~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~~ Schedule 8.10 to the ~~date on which Lenders under~~ Credit Agreement is deleted and replaced with Schedule 8.10 to this Agreement. (o) Schedule 8.13 to the ~~applicable Existing Class or Existing Classes are requested~~ Credit Agreement is deleted and replaced with Schedule 8.13 to ~~respond. Any Lender~~ this Agreement. (an p) Schedule 8.15 to the Credit Agreement is deleted and replaced with Schedule 8.15 to this Agreement. (q) Schedule 8.18 to the Credit Agreement is deleted and replaced with Schedule 8.18 to this Agreement. (r) Paragraph 3 of Exhibit A (“~~Extending Lender~~Form of Assignment and Acceptance”) 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~~ Credit Agreement is amended and restated to read 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, full 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 cofollows:

Appears in 1 contract

Sources: Joinder and Amendment Agreement

Incremental Facilities. (a) ~~The Borrower~~ At any time or from time to time after the Closing Date, the Company may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Maturity Date, one or more increases to the existing Revolving Credit Commitments of any Class (any such increase, the “New Revolving Credit Commitments”) and/or (B) prior to the Term B 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 (i) an ~~aggregate~~ amount in the aggregate, together with any Permitted Additional Notes issued pursuant to Section 7.03(q), not in excess of the Maximum Incremental Facilities Amount and (ii) (subject to the limitation in ~~the aggregate and~~ clause (i) above) not less than $~~100,000,000~~ 5,000,000 individually (or such lesser amount ~~as (x) may~~ which shall be approved by Administrative Agent), and integral multiples of $1,000,000 in excess of that amount (subject to the ~~Administrative Agent or~~ limitation in clause (yi) ~~shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date~~above). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the ~~Borrower~~ Company proposes that the New ~~Loan~~ Revolving Credit Commitments or New Term 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 (or such shorter period as shall be reasonably acceptable 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 Revolving Credit Lender” or “New Term Lender,” as applicable) to ~~provide all or a~~ whom the Company proposes any portion of such New Revolving Credit Commitments or New Term Commitments, as applicable, 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 Credit Commitments or New Term Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Credit Commitment or a New Term Commitment. ~~In each case, such~~ Such New ~~Loan~~ Revolving Credit Commitments or New 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~~ Revolving Credit Commitments or New Term 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~~Credit Commitments, each of the conditions set forth in Section 7 4.02 shall be satisfied; (~~iii~~3) on a Pro Forma Basis, after giving effect to such New Revolving Credit Commitments or New Term Loans (and with respect to any New Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available under such New Revolving Credit Commitment and any New Revolving Credit Commitments previously made pursuant to this Section 2.15), the Company and its Restricted Subsidiaries shall be in compliance with each of the covenants set forth in Section 7.11; (4) the New ~~Loan~~ Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more ~~Joinder Agreements~~ joinder agreements executed and delivered by the ~~Borrower~~ applicable Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the Register and shall be in the form agreed among the applicable Borrower, such New Revolving Credit Lender or New Term Lender, as applicable, and reasonably satisfactory to the Administrative Agent (each, a “Joinder Agreement”), and each New Revolving Credit Lender and New Term Lender shall be subject to the requirements set forth in Section ~~5.4(d)~~10.19; (iv5) the ~~Borrower~~ Company or the Dutch Borrower, as applicable, shall make any payments required pursuant to Section ~~2.11~~ 3.05 in connection with the New ~~Loan~~ Revolving Credit Commitments or New Term Commitments, as if applicable; and (v6) the ~~Borrower~~ Company shall deliver or cause to be delivered any customary 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~~established, subject to the satisfaction of the foregoing terms and conditions, (a) each of the ~~Lenders with~~ Revolving Credit ~~Commitments~~ Lenders of the applicable Class 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~~ Credit Lenders shall purchase from each of the ~~Lenders with~~ Revolving Credit ~~Commitments~~Lenders of the applicable Class, at the principal amount ~~thereof and in the applicable currency(ies)~~thereof, such interests in the Revolving ~~Credit~~ Loans of such 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~~ Credit Lenders ratably in accordance with their Revolving Credit Commitments of the applicable Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit ~~Commitments~~Commitments of the applicable Class, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit 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~~ Credit Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. The terms and provisions of the New Revolving Loans shall be identical to the Revolving Loans of the applicable Class. Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Sections 2.02 and 2.05(a) of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (c) Any New Term Loans effected through the establishment of one or more Term Loans made on an Increased Amount Date shall be designated a separate Class of New Term Loans, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term ~~Loan~~ Commitments of any ~~Series~~ Class are ~~effective~~effected, 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~~ such Class shall make a Loan to the applicable 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 Term Loans of such ~~Series~~ Class made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same Class as the Term B Loans. (d) Administrative Agent shall notify Lenders promptly upon receipt of the Company’s notice of each Increased Amount Date and in respect thereof (y) the Class of New Revolving Credit Commitments and the New Revolving Credit Lenders of such Class or the Class of New Term Commitments and the New Term Lenders of such Class, as applicable, and (z) in the case of each notice to any Revolving Credit Lender with respect to an increase in the Revolving Credit Commitments, the respective interests in such Revolving Credit Lender’s Revolving Credit Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.15. (e) The terms and provisions of the New Term Loans and New Term ~~Loan~~ Commitments of any ~~Series~~ Class shall bebe as agreed between the applicable Borrower and the New Term Lenders providing such New Term Loans and New Term Commitments, and except as otherwise set forth ~~herein or in~~ herein, to the extent not identical to the Term B Loans of the applicable ~~Joinder Agreement~~Class, ~~identical~~ shall be reasonably satisfactory to ~~one or more Classes of the existing Initial Term Loans; provided that~~ Administrative Agent. In any event: (i) the ~~applicable~~ Weighted Average Life to Maturity of all New Term ~~Loan~~ Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the Term B Loans (except by virtue of amortization or prepayment of the Term B Loans prior to the time of such incurrence); (ii) the Maturity Date of ~~each Series~~ any Class of the New Term Loans 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~~ maturity of the Term ~~Loans being refinanced~~B Loans; (iii) ~~and mandatory prepayment rights (other than scheduled amortization) of~~ the New Term Loans ~~and~~ will share ratably in right of prepayment with the ~~existing~~ Term Loans ~~shall be identical,~~ pursuant to Section 2.05(b) or otherwise; and (iiiv) the ~~fees, pricing and the amortization schedule~~ yield applicable to the New Term Loans or New Revolving Credit Loans of each ~~Series~~ Class shall be determined by the ~~Borrower~~ Company and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; ~~provided~~ provided, however, 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~~ such New Term Loans (after giving effect to all upfront or ~~in the case of~~ similar fees, original issue discount payable or interest rate floors with respect to such New Term ~~Loans that are Refinancing Commitments~~Loans) shall not be greater than the applicable interest rate payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Term B Loans, ~~no shorter than that of~~ as applicable (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder), plus 0.25% per annum unless the interest rate with respect to the Term B Loans ~~being refinanced~~is increased so as to cause the then applicable interest rate under this Agreement on the Term B Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder and the adjustment of any interest rate floor) ~~and (iii) all other terms~~ to equal the yield then applicable to the New Term Loans ~~of each Series that differ from the existing~~ (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such New 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 CommitmentsLoans) minus 0.25%; provided that ~~New Revolving Credit Commitments may provide for (a) a~~ customary arrangement or commitment ~~termination date that is later than~~ fees payable to the ~~commitment termination date of the 2020 Revolving Credit Commitments~~ Lead Arrangers (or ~~in the case~~ their respective affiliates) or one or more arrangers 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 CommitmentsFacilities under this Section 2.15 shall be excluded. (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 reasonable opinion of Administrative Agent and the ~~Administrative Agent,~~ Company to effect the provision of this Section ~~2.14. (i) The Borrower may at any time~~ 2.15, 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~~ 2.15 shall supersede any ~~Extended Term Loans, the Borrower shall provide a notice~~ provisions in Section 2.13 or 10.01 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 Agreement (Om Group Inc)

Appears in 1 contract

Sources: Credit and Guaranty Agreement

Incremental Facilities. (a) The Parent and/or the Borrower may, from time to time after the Closing Date, upon notice by the Borrower and/or the Parent (as applicable) to the Person appointed by the Borrower and/or the Parent (as applicable) to arrange an incremental facility (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by ~~written notice~~ the Borrower the “Incremental Arranger”) specifying the proposed amount thereof, request (i) 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 ~~Administrative Agent elect~~ be increased hereunder (except as otherwise provided in clauses (c) and (d) below or, subject to ~~request~~ the ~~establishment~~ terms of clause (f)(iii) below, with respect to any fees or original issue discount payable to the lenders providing such increase)) (each, a “Term Commitment Increase”), (ii) the addition of one or more new revolving credit facilities to the Facility, in each case, in such currency or currencies as the Borrower identifies in such notice (~~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 (iii) the addition of one or more new term loan facilities, in each case, in such currency or currencies as the Borrower identifies in such notice (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, together with the New Revolving Commitments and the Term ~~Loan Commitments~~Commitment Increase, the “New Loan Commitments”) by an amount not to exceed (including any unused amount thereof, in the case of any proposed New Revolving Facility) the sum of (x)the greater of (A) $100,000,000 and (B) 100% of Four Quarter Consolidated EBITDA (after giving effect to any acquisition or Investment consummated or to be consummated, including with the proceeds of any New Term Loan, New Revolving Loan or otherwise, on a Pro Forma Basis and all other appropriate pro forma adjustment events consistent with the definition of “Consolidated EBITDA” and Section 1.11) (the “Cash-Capped Incremental Facility”), by (y) an ~~aggregate~~ unlimited amount ~~not~~ (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage Requirement is satisfied and (z) an amount equal to (i)(A) all voluntary prepayments of Term Loans made pursuant to Section 2.05(a) and (B) all voluntary repurchases of Term Loans made pursuant to the terms hereof in ~~excess~~ an amount equal to the face amount of the ~~Maximum~~ Term Loans repurchased, in each case, to the extent not 116 funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility) (the “Prepayment-Based Incremental ~~Facilities Amount~~ Facility”) (such sum, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the ~~aggregate and not less than $100,000,000 individually (or such~~ lesser ~~amount as~~ of (x) ~~may be approved by~~ a Dollar Amount equal to $10,000,000 (in the ~~Administrative Agent~~ case of Term Commitment Increases or New Term Facilities) or a Dollar Amount equal to $5,000,000 (in the case of New Revolving Facilities) and (y) ~~shall constitute~~ the ~~difference between the Maximum Incremental Facilities Amount and all such~~ entire amount of any increase that may be requested under this Section 2.14; provided, further, that for purposes of any New Loan Commitments ~~obtained on~~ established pursuant to this Section 2.14 and Incremental Equivalent Debt incurred pursuant to Section 2.15, (A) unless the Borrower or the Parent (as applicable) elects otherwise, the Borrower or the Parent (as applicable) shall be deemed to have used (x) amounts under the Ratio-Based Incremental Facility (to the extent permitted by the pro forma calculation of the applicable ratio) prior to utilization of the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility and (y) amounts under the Prepayment-Based Incremental Facility prior to the Cash-Capped Incremental Facility, (B) New Loan Commitments pursuant to this Section 2.14 and Incremental Equivalent Debt pursuant to Section 2.15 may be incurred under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility and proceeds from any such ~~date~~incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility, and/or the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating (x) the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts utilized under the Cash-Capped Incremental Facility, the Prepayment-Based Incremental Facility and/or any amounts substantially concurrently incurred under Section 7.01 (other than any Ratio Debt incurred pursuant to Section 7.01 (including, pursuant to clause (o) thereof)~~. Each such notice~~ ) and then calculating the incurrence under the Cash-Capped Incremental Facility and/or the Prepayment-Based Incremental Facility and (y) the incurrence under the Prepayment-Based Incremental Facility and then calculating the incurrence under the Cash-Capped Incremental Facility and (C)(i) all or any portion of Indebtedness originally designated as incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility shall ~~specify~~ automatically cease to be deemed incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility from and after the first date ~~(each, an “Increased Amount Date”)~~ on which the Borrower ~~proposes that~~ or the Parent (as applicable) would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such Indebtedness under the Ratio-Based Incremental Facility (which, for the avoidance of doubt, shall have the effect of increasing the Cash-Capped Incremental Facility and/or the Prepayment-Based Incremental Facility, as applicable, by the Dollar Amount of such redesignated Indebtedness) and (ii) Parent may otherwise classify, and may later reclassify, all or any portion of Indebtedness as incurred as a Prepayment-Based Incremental Facility, Ratio-Based Incremental Facility or Cash-Capped Incremental Facility on the date of incurrence and thereafter to the extent otherwise permitted on the date of such classification (or the date of any such reclassification). Parent may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments ~~shall be effective, which shall be a date not less than ten Business Days after~~ as the ~~date on which such notice is delivered to the Administrative Agent. The~~ Borrower may ~~approach any~~ deem appropriate. (b) 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~~ participate in any New Loan Commitments may elect or decline, in its sole discretion, to ~~provide~~ participate in such increase or new facility. The Borrower may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and, solely in connection with a New ~~Loan Commitment~~Revolving Facility, with the consent of the Administrative Agent to become Lenders pursuant to a joinder agreement to this Agreement. ~~In each case~~Neither the Administrative 117 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 shall become effective as of~~ Commitments, 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~~ Borrower must provide to the Administrative Agent the documentation providing for such New Loan Commitments~~, as applicable;~~ . (c) If (i) a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) ~~both before and after giving effect to the making of any Series of~~ a New Term ~~Loans~~ Facility or New Revolving ~~Loans~~Facility is added in accordance with this Section 2.14, ~~each~~ the Incremental Arranger and the Borrower or the Parent (as applicable)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 ~~conditions set forth~~ final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with (i) any increase in ~~Section 7 shall be satisfied;~~ a Term Loan Tranche or (~~iii~~ii) ~~the~~ any addition of a New ~~Loan Commitments shall be effected~~ Term Facility or New Revolving Facility, in each case, pursuant to ~~one or more Joinder Agreements~~ 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 Borrower or the Parent (as applicable) and ~~Administrative Agent~~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 and to reflect any technical changes necessary, ~~and each~~ advisable or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein pursuant to the documentation relating to such New Term Facility or New Revolving Facility. As of ~~which shall be recorded~~ the Increase Effective Date, in the ~~Register and shall be subject~~ case of an increase to an existing Term Loan Tranche, the ~~requirements~~ amortization schedule for the Term Loan Tranche then increased set forth in Section ~~5.4(d);~~ 2.07(a) (~~iv) the Borrower shall make~~ or 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~~ applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrower or the Parent (as applicable) and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any such documentation)) to (x) add any call protection applicable to any existing Term Loan Tranche being increased and/or (y) 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 ~~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)date, such ~~interests in the Revolving Credit Loans outstanding on~~ aggregate amount to be applied to increase 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 installments ratably in accordance with ~~their Revolving Credit Commitments after giving~~ the amounts in effect immediately prior 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 theretoIncrease Effective Date. (d) ~~The terms and provisions~~ With respect to any Term Commitment Increase or addition of New Term Facility or New Revolving Facility pursuant to this Section 2.14, (i) no Specified Event of Default (subject to Section 1.02(i)) would exist immediately after giving effect to such increase; (ii) (A) in the case of any increase of a Term Loan Tranche, the final maturity of the Term Loans, New Term Loans ~~and New~~ or Specified Refinancing Term ~~Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical~~ Loans increased pursuant to ~~one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series~~ this Section shall be no earlier than the ~~2018B Second New Term Loan~~ Latest Maturity Date ~~(or in~~ for, and such additional Loans shall not have a Weighted Average Life to Maturity shorter than the ~~case of~~ longest remaining Weighted Average Life to Maturity of, any other outstanding Term Loans, New Term Loans ~~that are~~ or Specified Refinancing ~~Commitments, no earlier than that of~~ Term Loans as applicable unless 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 Lenders are also offered by the Borrower ~~and~~ or the ~~applicable new Lenders and shall be set forth in each applicable Joinder Agreement;~~ Parent (as applicable) the same amortization amounts for the corresponding year (provided that ~~the weighted average life~~ each Term Lender will be deemed to ~~maturity of all New~~ have rejected such offer unless such 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 Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (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 (105) Business Days (or such ~~shorter~~ longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer; provided, (x) that Extendable Bridge Loans/Interim Debt may have a maturity date earlier than the Latest Maturity Date of all 118 then outstanding Term Loans and the Weighted Average Life to Maturity of Extendable Bridge Loans/Interim Debt may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans and (y) the requirements in this clause (A) shall not apply to any Ratio-Based Incremental Facility and (B) in the case of any New Term Facility, other than in the case of Extendable Bridge Loans/Interim Debt and any Ratio-Based Incremental Facility, 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 unless the Term Lenders are also offered by the Borrower or the Parent (as applicable) the same amortization amounts for the corresponding year (provided that each Term Lender will be deemed to have rejected such offer unless such Term Lender notifies the Administrative Agent that it has accepted such offer by 11 a.m. five (5) Business Days (or such longer period which the Borrower or the Parent (as applicable) agrees) after the date of such offer and (iii) except as set forth in clause (f)(iii) below with respect to All-In Yield and 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 Facility, any such New Term Facility shall have the same terms as any Term Facility and any New Revolving Facility shall have the same terms as any comparable term of any Term Facility; provided, that notwithstanding the foregoing, such terms may differ from the terms of any Term Facility so long as agreed between the Borrower or the Parent (as applicable) and the lenders providing such New Term Facility or New Revolving Facility and so long as such different terms (w) to the extent more favorable to the existing Lenders than comparable terms existing in the Loan Documents, as reasonably determined by Parent in consultation with the Administrative Agent are 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 Parent, any increase in the Applicable Rate relating to any existing Term Facility to bring such Applicable Rate in line with the New Term Facility to achieve fungibility with such existing Term Facility, (x) are applicable only to periods after the Latest Maturity Date of the Term Facilities existing at the time of the incurrence of such indebtedness, (y) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Parent in good faith) or (z) are reasonably satisfactory to the Borrower or the Parent (as applicable), the Incremental Arranger and the Administrative Agent~~) prior~~ . Subject to the ~~date on which~~ foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders ~~under the applicable Existing Class~~ providing such increase 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 CommitmentsLoan Commitment, as applicable, ~~shall notify~~ and the ~~Administrative Agent~~ Borrower. (~~an “Extension Election”~~e) ~~on or prior~~ 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 ~~specified in such Extension Request~~ of the ~~amount~~ making of ~~its~~ such new Term Loans, ~~Revolving Credit Commitments~~and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, ~~New Revolving Credit Commitment or Extended Revolving Credit Commitment~~ such new Loans shall be added to (and form part of) each Borrowing of ~~the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended~~ outstanding Term Loans ~~or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of~~ under such 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, Loan Tranche on a pro rata basis (based on the ~~amount~~ 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~~Loans under the Term Loan Tranche. (f) (i) Subject to the Agreed Security Principles, ~~Revolving Credit Commitments,~~ any New Revolving ~~Credit Commitment~~ Facility and New Term Facility shall rank pari passu in right of payment with the other Facilities, not be Guaranteed by any Person that is not the Borrower or ~~Extended Revolving Credit Commitment included~~ a Guarantor under each of the other Facilities, and be 119 unsecured, secured either on a first lien “equal and ratable” basis with the other Facilities or on a “junior” basis with the other Facilities, in each ~~such Extension Election. Notwithstanding~~ case over the ~~conversion~~ same (or less) Collateral that secures the Facilities (and in each case, the application of any ~~Existing Revolving Credit Commitment (other than a~~ proceeds of the Collateral securing such New Revolving ~~Credit Commitment) into~~ Facility or New Term Facility shall, if documented in an ~~Extended Revolving Credit Commitment~~agreement that is separate from this Agreement, be subject to an Acceptable Intercreditor Agreement), but if unsecured or secured on a “junior” basis to the other Facilities, such ~~Extended~~ New Revolving ~~Credit Commitment~~ Facility or New Term Facility shall be ~~treated identically to all other Old~~ documented in an agreement that is separate from this Agreement, (ii) the New Term Facility or New Revolving ~~Credit Commitments~~ Facility, as applicable, shall, for purposes of prepayments, be treated substantially the ~~obligations of a Revolving Credit Lender~~ same as (and in ~~respect of Swingline Loans under Section 2.1(c~~any event no more favorably than) ~~and Letters of Credit under Article 3~~any Term Facility, ~~except that~~ unless the ~~applicable Extension Amendment may provide that~~ Borrower or the ~~Swingline Maturity Date and/or~~ Parent (as applicable) otherwise elects (but in any event no more favorably than 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~~existing Term Loan

Appears in 1 contract

Sources: Credit Agreement (Farfetch LTD)

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 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~~ 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 1 contract

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

Incremental Facilities. (a) The ~~Borrower may~~ Borrower, by written notice to Administrative Agent and the Lead Arranger on one or more occasions prior to the Revolving Commitment Termination Date, may elect to request an increase to the ~~establishment of one or more~~ existing Revolving 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 that would result in all Revolving Commitments (both existing and New Revolving Loan Commitments) not ~~in excess of the Maximum Incremental Facilities Amount~~ exceeding $600,000,000 in the aggregate (each such amount in addition to the Revolving Commitments as of the Amendment and Restatement Date, a “Facility Increase” and the maximum aggregate increase, the “Maximum Increase Amount”) and not less than $~~100,000,000 individually~~ 25,000,000 per request (or such lesser amount ~~as (x) may~~ which shall be approved by ~~the~~ Administrative Agent and the Lead Arranger or ~~(y)~~ such lesser amount that shall constitute the difference between the Maximum ~~Incremental Facilities~~ Increase Amount and all such New Revolving 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 proposes that the New Revolving Loan Commitments shall be effective, which shall be a date not less than ~~ten~~ 10 Business Days, nor more than 30 Business Days after the date on which such notice is delivered to Administrative Agent and Lead Arranger 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 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~~ 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. (b) Administrative Agent and Lead Arranger (in such capacity, the “Facility Increase Arrangers”), unless any of them separately waives such right, will manage all aspects of the syndication of the proposed New Revolving Loan Commitments, including identifying each New Revolving Loan Lender to whom any portion of the New Revolving Loan Commitments shall be allocated, the timing of all offers to Lenders and other Eligible Assignees and the acceptance of commitments, the amounts offered and the compensation provided; provided, that (i) the Facility Increase Arrangers will consult with the Borrower with respect to the syndication LA\4027402.11 LA\4027402.11 of the proposed New Revolving Loan Commitments, (ii) any allocation to any Eligible Assignee that is not a Lender, Affiliate of a Lender or a Related Fund shall be subject to the consent of the Borrower and Administrative Agent (in each case not to be unreasonably withheld or delayed), (iii) in the event the Facility Increase Arrangers are unable to fully syndicate the proposed Facility Increase by the date which is 5 Business Days prior to the applicable Increased Amount Date, the Borrower may identify Persons who are Eligible Assignees to whom the Facility Increase Arrangers shall allocate any unsyndicated portion of the Facility Increase, subject to Administrative Agent’s consent right as set forth in subclause (ii) above, and (iv) in the event the Borrower is able to identify Persons who are Eligible Assignees and who are willing to commit to all or a portion of the Facility Increase for compensation that is no greater than the compensation required by the Persons identified by the Facility Increase Arrangers, the Facility Increase Arrangers shall allocate such portion of the Facility Increase to such Persons identified by the Borrower, subject to Administrative Agent’s consent right as set forth in subclause (ii) above. In Subject to the immediately preceding sentence, the Facility Increase Arrangers and each ~~case~~Lender shall have the ongoing right to sell, assign, syndicate, participate, or transfer all or a portion of its Commitment or Loans owing to it or other Obligations to one or more investors as otherwise provided in Section 10.6. Without limitation on the Facility Increase Arrangers’ rights as set forth herein, in the event there are Lenders and Eligible Assignees that have committed to New Revolving Loan Commitments in excess of the maximum amount requested (or permitted), then the Facility Increase Arrangers shall have the right to allocate such commitments, first to Lenders and then to Eligible Assignees, on whatever basis the Facility Increase Arrangers determine is appropriate (except that the Facility Increase Arrangers will consult with the Borrower with respect to such allocations). (c) Such New Revolving Loan Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date~~; provided that~~ , subject to the satisfaction of each of the following conditions precedent, as determined by Administrative Agent in its good faith judgment: (i) no ~~Default or~~ Event of Default shall ~~exist~~ have occurred and be continuing on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments~~, as applicable;~~ ; (ii) ~~both before~~ as of such Increased Amount Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects made (or in the case of any representation, warranty or certification that is qualified as to “materiality,” “Material Adverse Effect” or similar language, shall not be incorrect in any respect as of the date made or deemed made) on and as of such Increased Amount Date to the same extent as though made on and as of that 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 made (or in the case of any representation, warranty or certification that is qualified as to “materiality,” “Material Adverse Effect” or similar language, incorrect in any respect as of the date made or deemed made) on and as of such earlier date; LA\4027402.11 LA\4027402.11 (iii) the Parent Guarantor 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 ~~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;~~ Loan Commitments; (~~iii~~iv) the New Revolving Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrower, the New Revolving Loan Lenders and Administrative Agent, ~~and~~ each of which shall be recorded in the ~~Register~~ Register, and each New Revolving Loan Lender shall be subject to the requirements set forth in Section ~~5.4(d);~~ 2.20; (ivv) 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; 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~~ ; (vii) as requested by Administrative Agent, the Credit Parties shall ~~be designated~~have acknowledged and ratified that their obligations under the applicable Credit Documents remain in full force and effect, ~~a separate series (a “Series”) of New Term Loans for all purposes of this Agreement; provided that (A) if~~ and continue to guaranty and secure the ~~use of proceeds of such New Loan Commitments is an acquisition or investment permitted under this Agreement~~Obligations, ~~if agreed among the Borrower and~~ as modified by the New Revolving Loan ~~Lenders and/or New Term Loan Lenders, as applicable, customary “SunGard” limited conditionality shall apply to~~ Commitments and the ~~effectiveness of such new Loan Commitments in lieu~~ implementation of the ~~conditions set forth~~ Facility Increase; and (viii) in ~~clauses (i), (ii) and if applicable, (v), above and (B) if such~~ connection with the making of any New Revolving 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~~ Borrower shall have paid all reasonable and documented costs and expenses incurred by Administrative Agent in ~~clauses (i) and (ii) above shall not apply~~connection with the Facility Increase. (bd) 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 “~~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 Loans outstanding, including participations in Swing Line Loans and Letter of Credit ~~Loans outstanding~~ Usage on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such interests in 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~~ Loan Commitments to the Revolving ~~Credit Commitments~~Commitments and the Administrative Agent shall record such adjustments as necessary to reflect such reallocation, (b) 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 (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving ~~Credit~~ Loan Commitment and all matters relating thereto. (ce) ~~On any~~ Administrative Agent shall notify 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~~ Revolving 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.~~ Revolving Loan Lenders and (dz) 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 LA\4027402.11 LA\4027402.11 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 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 this Section 2.24. (~~or in the case of New Term Loans that are Refinancing Commitments, no shorter than that of the Term Loans being refinanced~~f) 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) 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,~~ Agent and Lead Arranger 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 Agreement (Northstar Realty Finance Corp.)

Incremental Facilities. (ai) ~~The Borrower~~ For the avoidance of doubt and notwithstanding any provision to the contrary set forth in this Agreement or any other Loan Document, this Agreement may ~~by written notice~~ be amended (or amended and restated) at any time and from time to ~~Administrative Agent elect~~ time to ~~request~~ increase the ~~establishment of~~ Revolving Committed Amount or to establish one or more ~~(x)~~ additional separate tranches of term loans (each such increase to the ~~commitments thereto,~~ Revolving Committed Amount and/or establishment of a new tranche term loans being referred to herein as an “Incremental Facility,” and all of such increases and establishments being referred to collectively as the “~~New Term Loan Commitments~~Incremental Facilities”) ~~and/or (y) increases in Revolving Credit Commitments (~~to be made to the ~~“New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”),~~ Borrower by an ~~aggregate amount not~~ agreement in ~~excess of~~ writing entered into by 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~~ Borrower, the Administrative Agent and each Person (including any Lender) that shall agree to provide any such increase to the Revolving Commitments or such separate tranches of term loans (ybut without the consent of any other Lender), and each such Person that shall not already be a Lender shall, at the time such agreement becomes effective, become a Lender with the same effect as if it had originally been a Lender under this Agreement with the Revolving Commitment and/or term loan set forth in such agreement; provided, however, that: (A) the aggregate principal amount of additional Revolving Commitments and/or separate term loans effected after the Closing Date pursuant to this Section 9.1(c) 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~~ not exceed $20,000,000; (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 (iB) no Default or Event of Default shall exist ~~on such Increased Amount Date before or after~~ at the time that the amendment giving effect to any such ~~New Loan Commitments, as applicable; (ii) both before and after giving effect to~~ additional Revolving Commitments and/or 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 Lendersterm loan, as applicable, ~~customary “SunGard” limited conditionality shall apply~~ becomes effective; (C) to the ~~effectiveness of such new~~ extent not consistent with the terms applicable to the existing Term Loan ~~Commitments in lieu of the conditions set forth in clauses (i)~~Facility, ~~(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~~ other requirements of ~~the foregoing~~ this Section 9.1(c), all terms and ~~conditions~~conditions in respect of any Incremental Facility structured as a separate term loan tranche, will be reasonably satisfactory to the Administrative Agent, (aD) ~~each of the Lenders with Revolving Credit Commitments~~ no Lender shall ~~assign~~ be obligated to ~~each~~ participate in any such increase by increasing its own commitment hereunder unless such 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,~~ elects to do so in its sole discretion at the ~~principal amount thereof and in the applicable currency(ies)~~time of such increase, ~~such interests in the Revolving Credit Loans outstanding on such Increased Amount Date~~ (E) any Incremental Facility structured as a separate term loan tranche 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 not (1) have a maturity date that occurs prior 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 the final maturity date of any other then existing Incremental Facility structured as a separate term loan tranche or (~~or in the case of New Term Loans that are Refinancing Commitments, no earlier than that of the Term Loans being refinanced~~2) 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 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~~ Loan or any other then existing Incremental Facility structured as a separate term loan tranche, respectively, (~~or in~~ F) the ~~case~~ Applicable Yield of ~~New Term Loans that are Refinancing Commitments, no shorter than that~~ any Incremental Facility structured as a separate term loan tranche may not exceed the Applicable Yield of the Term ~~Loans~~ Loan by more than 0.25% (it being ~~refinanced~~understood that the Applicable Rate for the Term Loan may be increased and/or additional fees may be paid to the Lenders holding the Tranche B Term Loan to the extent necessary to satisfy such requirement) and (~~iii~~G) the Applicable Yield of any Incremental Facility consisting of additional Revolving Commitments may not exceed the Applicable Yield of the Revolving Facility (it being understood that the Applicable Rate for the Revolving Facility may be increased and/or additional fees may be paid to the existing Revolving Lenders to the extent necessary to satisfy such requirement). Subject to the foregoing requirements, the interest margin applicable to any new Revolving Commitments or Incremental Facility structured as a separate term loan tranche, and the final maturity of any Incremental Facility structured as a separate term loan tranche, shall be determined at the time such Incremental Facility is made available, and 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 additional Revolving ~~Loans and New Revolving Credit~~ Commitments shall be ~~identical~~ the same as those applicable to the ~~2020~~ initial Revolving ~~Credit~~ Commitments. The Loans and Commitments established pursuant to this Section 9.1(c) shall constitute Loans and Commitments under, and shall be entitled to all 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 Commitmentsbenefits afforded by, 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~~and shall, ~~in the opinion~~ without limitation of the ~~Administrative Agent~~foregoing, ~~to effect~~ benefit equally and ratably from the ~~provision of this Section 2.14. (i) The Borrower may at any time~~ Guaranty and ~~from time to time request that all or a portion of~~ security interests created by 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 convertedSecurity Documents, ~~“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~~ take any actions reasonably required by the Administrative Agent ~~(who shall provide a copy~~ to ensure and/or demonstrate that the requirements of ~~such notice to each~~ this sentence are satisfied after the establishment 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 convertedIncremental Facility. (ii) ~~The~~ Any such amendment (or amendment and restatement) effected pursuant to Section 9.1(c) shall amend the provisions of this Agreement and the other Credit Documents to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of this Section 9.1(c)) and to effect such other changes (including changes to the provisions of Section 9.1(a), Section 2.7 and the definition of “Required Lenders”) as the Borrower ~~may at~~ and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any ~~time~~ such Incremental Facility; provided, however, that no such agreement shall: (A) effect any change described in any of clauses of Section 9.1(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the aggregate Revolving Committed Amount or establishment of any Incremental Facility consisting of a separate tranche of term loans will not, of itself, be deemed to effect any of the changes described in Section 9.1(a), and ~~from time~~ that modifications to ~~time request~~ Section 2.7, Section 2.11 or the definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental Facility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in Section 9.1(a), or (B) amend Article V, VI or VII in any manner that by its terms benefits one or more tranches, but not all tranches, of Loans or Commitments without the prior written consent of Lenders holding a ~~portion~~ majority in interest of the Revolving ~~Credit Commitments~~Commitments then existing, ~~any Extended~~ if the Lenders holding Revolving ~~Credit~~ Commitments ~~and/or any New Revolving Credit Commitments~~are not so benefited, and of Lenders holding a majority in interest of each separate tranche of term loans then existing ~~at the time of such request~~ and not so benefited, (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 it 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, agreed that no provision requiring the Borrower ~~shall provide a notice~~ to prepay term loans of one or more Incremental Facilities with the ~~Administrative Agent (who shall provide a copy~~ proceeds of ~~such notice~~ Asset Dispositions, Recovery Events, Debt Issuances or with the proceeds of Excess Cash Flow will be deemed 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 violate 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 dateclause). (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 (Bravo Brio Restaurant Group, 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 Commitments (any such increase, the “New Revolving Loan Commitment Increases”) or the establishment of one or more new Revolving Commitments (xany such new commitments, “New Incremental Revolving Loan Commitments” and, collectively with any New Revolving Loan Commitment Increases, the “New Revolving Loan Commitments”) ~~additional tranches~~ and/or (B) prior to the Maturity Date, an increase to the existing Term Loans or the establishment of one or more 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”~~), by ~~an aggregate amount not in excess of~~ the ~~Maximum~~ Available Incremental ~~Facilities Amount in the aggregate~~ Amount, and not less than $~~100,000,000~~ 5,000,000 (or, with respect to any New Revolving Loan Commitments to be established in an Alternative Currency, the Dollar Amount equivalent) individually (or such lesser amount ~~as (x) may~~ which shall reasonably be approved by ~~the~~ Administrative Agent or ~~(y)~~ such lesser amount that shall constitute the difference between the ~~Maximum~~ Available Incremental ~~Facilities~~ Amount and all such New Revolving Loan Commitments and New Term Loan Commitments obtained ~~on or~~ prior to such date). , and integral multiples of $1,000,000 (or, with respect to any New Revolving Loan Commitments to be established in an Alternative Currency, the Dollar Amount equivalent) in excess of that amount. (b) Each such notice shall ~~specify~~ 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~~ 3 Business Days after the date on which such notice is delivered to ~~the~~ Administrative Agent or such shorter period of time as reasonably consented to by Administrative Agent~~. The Borrower may approach any~~ , (B) whether or not such New Revolving Loan Commitments or New Term Loan Commitments are incurred under the Available Incremental Amount and (C) 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 each Arranger may elect or decline to arrange such New Revolving Loan Commitments or New Term Loan Commitments in its sole discretion (it being understood that this proviso shall not require the Borrower to engage any Arranger as an arranger with respect thereto) 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~~Notwithstanding anything to the contrary herein, the aggregate amount of New Term Loans, when added to the aggregate amount of New Incremental Revolving Loan Commitments and any Additional Permitted Debt incurred on or prior to the date of incurrence of such New Term Loans and/or New Incremental Revolving Loan Commitments, as applicable, shall not exceed the Available Incremental Amount. (c) Such New Revolving Loan Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided ~~that~~ that: (i1) no ~~Default or~~ Event of Default under Section 8.1(a), (f) or (g) 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; (2) solely to the extent required by the Lenders providing such commitments, as of such Increased Amount Date, the representations and warranties contained herein and in the other Credit Documents 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 that 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 (i) 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 and (ii) ~~both before and after giving effect to~~ solely in the ~~making~~ case of ~~any Series of~~ a New ~~Term Loans~~ Loan in connection with a Permitted Acquisition or ~~New Revolving Loans~~other Investment permitted hereunder, ~~each of the conditions set forth in Section 7~~ such requirement shall be ~~satisfied;~~ subject to customary “Sungard” limitations; (~~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 the ~~Borrower~~ Borrower, the 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); ; (iv4) 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~~ ; (v5) As determined by the ~~Borrower shall deliver or cause to be delivered~~ Administrative Agent, 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~~ and (A6) ~~if the use of proceeds of~~ such ~~New Loan Commitments is an acquisition or investment permitted under this Agreement, if agreed among the Borrower~~ new Term Loans 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~~be subject to any Guaranty by any affiliate of a Credit Party unless such Person also Guaranties the Obligations and shall not be secured by any Collateral that does not secure the Term Loans. (bd) 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 Increase shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “New Revolving Loan Increase”) shall be deemed, for all purposes, a Revolving Loan, (c) each New Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving ~~Credit~~ Commitment and each Loan made thereunder (a “New Incremental Revolving Loan” and, together with any New Revolving Loan Increase, 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. (ce) 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” and, together with any New Revolving Loan, a “New 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. (df) Administrative Agent shall notify Lenders promptly upon receipt of the 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 Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24. (g) The terms and provisions of the New Revolving Loan Increases shall be identical to the Revolving Loans. (h) The terms and provisions of the New Incremental Revolving Loans and New Revolving Loan Commitment Increases of any Series shall be as set forth herein or in the Joinder Agreement. In any event (i) the applicable Maturity Date of each Series shall be no shorter than the latest of the Latest Maturity Date and no mandatory commitment reductions shall be required prior to the Latest Maturity Date of the Revolving Loans and (ii) any terms of any New Incremental Revolving Loans and New Incremental Revolving Loan Commitments that are more restrictive than the terms of the Revolving Loans must be either (x) reasonably acceptable to the Administrative Agent or (y) incorporated in the Credit Documents (which may be done only with the consent of the Administrative Agent in its reasonable discretion without the need for consent by any Lender) for the benefit of the existing Lenders. (i) 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~~ . In any event: (i) subject to the Inside Maturity Exception, the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the remaining weighted average life to maturity of the Initial Term Loans and any existing New Term Loans (whichever is longest), (ii) subject to the Inside Maturity Exception, the applicable ~~New Term Loan~~ Maturity Date of each Series shall be no ~~earlier~~ shorter than the ~~2018B Second New Term Loan~~ Latest Maturity Date (or or, in the case of ~~New Term Loans that are Refinancing Commitments~~unsecured, subordinated or junior secured Indebtedness, such Series shall mature no earlier than ~~that~~ 91 days after the Latest Maturity Date of the ~~Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization) of the New~~ Initial Term Loans and ~~the~~ any existing New Term ~~Loans shall be identical,~~ Loans), (iiiii) the ~~fees~~pricing, ~~pricing~~ interest rate margins, discounts, premiums, rate floors, fees 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~~ provided, however, that (A) if incurred solely within the ~~weighted average life~~ 6-month period following the Third Amendment Effective Date, the All-in Yield applicable 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~~ Qualified Term Loans and incurred under any of the Incremental Ratio Tests (or any other applicable leverage based tests under Section 6.1 permitting the incurrence of pari passu Indebtedness) shall not be greater than the applicable All-in Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans ~~being refinanced) and (iii) all other terms~~ plus 0.75% per annum unless the interest rate with respect to the Initial Term Loans is increased so as to cause the then applicable All-in Yield under this Agreement on the Initial Term Loans to equal the All-in Yield then applicable to the New Term Loans less 0.75% and (B) if incurred solely within the 6-month period following the Fourth Amendment Effective Date, the All-in Yield applicable to New Term Loans that are Qualified Term Loans and incurred under any of ~~each Series~~ the Incremental Ratio Tests (or any other applicable leverage based tests under Section 6.1 permitting the incurrence of pari passu Indebtedness) shall not be greater than the applicable All-in Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to 2025 Incremental Term Loans plus 0.75% per annum unless the interest rate with respect to the 2025 Incremental Term Loans is increased so as to cause the then applicable All-in Yield under this Agreement on the 2025 Incremental Term Loans to equal the All-in Yield then applicable to the New Term Loans less 0.75%; provided that ~~differ from~~ the ~~existing~~ foregoing shall not apply to New Term Loans that (1) are incurred in connection with a Permitted Acquisition or other Investments, (2) with respect to clause (A) of this Section 2.24(i)(iii), are scheduled to mature more than two years after the Maturity Date of the Initial Term Loans, or with respect to clause (B) of this Section 2.24(i)(iii), are scheduled to mature more than two years after the Maturity Date of the 2025 Incremental Term Loans or (3) in the aggregate, do not exceed the greater of (x) $542,000,000 and (y) 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (the “MFN Provision”), (iv) any mandatory prepayment (other than any scheduled amortization payment) of New Term Loans shall be made on a pro rata basis with suchany existing Initial Term Loans, and existing 2025 Incremental Term Loans except that the Borrower and the lenders providing the relevant New Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (v) any voluntary prepayment of New Term Loans may provide for the ability to participate on a pro rata basis or non-pro rata basis in any voluntary prepayments of any other Term Loans; and (vi) the New Term Loans may otherwise have terms and conditions different from those of the Initial Term Loans and 2025 Incremental Term Loans (including currency denomination); provided further, that, if such terms and conditions are not substantially consistent with the terms of the then existing Term Loans, except with respect to matters contemplated by clauses (i) – (v) above, any differences shall (1) reflect market terms at the time of incurrence or issuance thereof (as determined by the Borrower and the lenders or financing sources providing the applicable Indebtedness) or (2) be reasonably ~~acceptable~~ satisfactory to the Administrative Agent (~~as evidenced~~ including, without limitation, to (i) add covenants and other provisions applicable only to the periods after the Latest Maturity Date applicable to the then-existing Initial Term Loans and then-existing 2025 Incremental Term Loans (it being understood that, to the extent that any covenants or other provisions are added for the benefit of any such Indebtedness, no consent shall be required by ~~its execution~~ the Administrative Agent or any of the Lenders if such covenants or other provisions are also added for the benefit of any then outstanding Term Loan), (ii) increase the All-in Yield of the applicable ~~Joinder Agreement). The terms and provisions~~ Class of Term Loans and/ or amend the ~~New Revolving Loans and New Revolving Credit Commitments shall be identical~~ amortization applicable thereto, in each case, to the ~~2020 Revolving Credit~~ extent necessary in order to ensure that any applicable Class of Term Loans ~~and~~ are “fungible” with the ~~2020 Revolving Credit Commitments~~applicable Incremental Term Loans; provided that ~~New Revolving Credit Commitments may provide for (a) a commitment termination date that is later than~~ any such amendment to the ~~commitment termination date~~ amortization applicable to any existing Class of ~~the 2020 Revolving Credit Commitments (or~~ Term Loans shall not result in the ~~case~~ decrease of ~~New Revolving Credit Commitments that are Refinancing Commitments~~any amortization payment any Lender of such Class of Term Loans would have received prior to giving effect to such amendment, ~~later than~~ (iii) add, modify or extend “soft call” or add, modify or extend any other “call protection,” in either case, for the ~~commitment termination date~~ benefit of any existing Class of Loans and (iv) modify the ~~Revolving Credit Commitments being refinanced~~terms of this Agreement to appropriately incorporate revolving facility mechanics (including those related to payments, prepayments, purchases of participations and reallocation mechanisms and letter of credit and/or swingline subfacilities) and ~~(b) fees~~ other provisions and ~~pricing as agreed between the Borrower and the Lenders providing such New Revolving Credit Commitments~~commitment schedules relating to revolving facilities generally)). (ej) ~~Each~~ Notwithstanding Section 10.5, 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 1 contract

Sources: Fourth Amendment and Joinder Agreement to Credit and Guaranty Agreement (Madison Air Solutions Corp)

Incremental Facilities. (a) ~~The~~ Before the Revolving Credit Maturity Date, the Borrower may by written notice to Administrative Agent elect to request the establishment of one or more increases in the Revolving Facility (~~x) additional tranches of term loans (~~each increase to the ~~commitments thereto~~Revolving Facility, ~~the~~ a “New ~~Term Loan Commitments”) and/or (y) increases in~~ Revolving Credit ~~Commitments (~~Commitment” and, collectively, 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 in the aggregate and not less than~~ to exceed $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)250,000,000. 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 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~~ Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Credit Commitment. ~~In each case, such~~ Such New ~~Loan~~ Revolving Credit Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided ~~that~~ further 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~~ the covenant set forth in Section 6.07 shall be satisfied on a Pro Forma Basis as of the Increased Amount Date and as of the last day of the most recent determination period, after giving effect to ~~the making of any Series of New Term Loans or~~ such New Revolving ~~Loans~~Credit Commitments (assuming for the purposes of such calculation that any New Revolving Credit Commitments are fully drawn) and other customary and appropriate Pro Forma Adjustments, ~~each~~ including any acquisitions or dispositions after the beginning of the ~~conditions set forth in Section 7 shall be satisfied~~relevant determination period and prior to or simultaneous with the effectiveness of such New Revolving Credit Commitments; (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 this Agreement (including Section ~~2.11~~ 2.15) to the Administrative Agent, any collateral agent if the Facilities are secured, and the Lenders (other than any Defaulting Lender), in connection with the New ~~Loan~~ Revolving Credit Commitments, as applicable; ~~and~~ (iv) if the Obligations are secured pursuant to the terms hereof, such New Revolving Credit Commitments will share pari passu in the collateral included in the Agreed Security Package; (v) the ~~Borrower~~ Administrative Agent, the Swingline Lender and the Issuing Banks shall ~~deliver or cause~~ have consented to such prospective lender and (vi) such New Revolving Credit Commitment will be ~~delivered~~ documented solely as an increase to the Revolving Credit Commitments, without any ~~legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction~~change to the Revolving Facility’s terms. ~~Any~~ The proceeds of each New ~~Term Loans made on an Increased Amount Date~~ Revolving Credit Commitment shall be ~~designated~~used for working capital and general corporate purposes. For the avoidance of doubt, ~~a separate series (a “Series”)~~ no Lender shall be obligated to provide any portion 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~~(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 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~~ effected by a joinder agreement (the ~~2020 Revolving Credit Loans and the 2020 Revolving Credit Commitments; provided that~~ “New ~~Revolving Credit Commitments may provide for (a~~Loan Increase Joinder”) ~~a commitment termination date that is later than the commitment termination date of the 2020 Revolving Credit Commitments (or~~ substantially in the ~~case~~ form of ~~New Revolving Credit Commitments that are Refinancing Commitments~~Exhibit 2.22 executed by the Borrower, ~~later than~~ the ~~commitment termination date of the Revolving Credit Commitments being refinanced)~~ Administrative Agent and ~~(b) fees and pricing as agreed between the Borrower and the Lenders providing~~ each Lender making such New Revolving Credit ~~Commitments. (e)~~ 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~~ 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~~2.22. (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 Agreement (Kinder Morgan, Inc.)

Incremental Facilities. (a) ~~The~~ At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Maturity Date of the Revolving Credit Facility, (I) one or more increases to the existing Revolving Credit Commitments and/or (II) the establishment of one or more new revolving credit commitments (~~x) additional tranches of term loans (the commitments thereto~~any such increase or new commitment, ~~the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (~~the “New Revolving Credit Commitments~~” and~~”) and/or (B) prior to the Maturity Date of the Term B Loan Facility, ~~together with~~ the ~~New Term Loan Commitments,~~ establishment of one or more new term loan commitments (the “New ~~Loan~~ Term Commitments”)~~, by~~ . Each New Revolving Credit Commitment and New Term Commitment shall be in an aggregate principal amount ~~not in excess of the Maximum Incremental Facilities Amount in the aggregate and~~ that is 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 or ~~(y)~~ such lesser amount if such amount represents all remaining availability under the limit set forth in the next sentence), and integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the New Revolving Credit Commitments and New Term Commitments shall ~~constitute~~ be available to the ~~difference between~~ Borrower so long as the ~~Maximum Incremental Facilities Amount and all~~ Senior Secured Leverage Ratio shall be no greater than 4.00 to 1.0 as of the end of the Test Period most recently ended after giving Pro Forma Effect to such New ~~Loan~~ Revolving Credit Commitments ~~obtained on~~ or ~~prior~~ New Term Loans (and, in each case, with respect to any New Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available under such ~~date~~New Revolving Credit Commitment and any New Revolving Credit Commitments previously made pursuant to this Section 2.14). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New ~~Loan~~ Revolving Credit Commitments or New Term 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~~ , (or such shorter period as shall be reasonably acceptable to the Administrative 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 Credit Lender” or “New Term Lender,” as applicable) to ~~provide all or a~~ whom the Borrower proposes any portion of such New Revolving Credit Commitments or New Term Commitments, as applicable, be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that (x) any Lender ~~offered or~~ approached to provide all or a portion of the New ~~Loan~~ Revolving Credit Commitments or New Term Commitments may elect or decline, in its sole discretion, to provide a New ~~Loan~~ Revolving Credit Commitment or a New Term Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any New Revolving Credit Commitment or New Term Commitment~~. In each case~~) and (y) the Administrative Agent, the L/C Issuer and the Swing Line Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such New ~~Loan~~ Revolving Credit Commitments or New Term Commitments if such consent would be required under Section 10.07 for an assignment of Loans or Commitments to such Person. Such New Revolving Credit Commitments or New 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~~ Revolving Credit Commitments or New Term 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~~Credit Commitments, each of the conditions set forth in Section 7 4.02 shall be satisfied; (~~iii~~3) (i) if the Borrower is required to comply with Section 7.10 on the Increased Amount Date, the Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in Section 7.10 after giving Pro Forma Effect to such New Revolving Credit Commitments or New Term Loans (and with respect to any New Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available under such New Revolving Credit Commitment and any New Revolving Credit Commitments previously made pursuant to this Section 2.14), as applicable; (4) the New ~~Loan~~ Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the ~~Register~~ Register, and each New Revolving Credit Lender and New Term Lender shall be subject to the requirements set forth in Section ~~5.4(d)~~10.15; (iv5) the Borrower shall make any payments required pursuant to Section ~~2.11~~ 3.05 in connection with the New ~~Loan~~ Revolving Credit Commitments or New Term Commitments, as if applicable; and (v6) the Borrower shall deliver or cause to be delivered any customary 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~~effected through an increase to the existing Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (a) each of the ~~Lenders with~~ Revolving Credit ~~Commitments~~ Lenders 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~~ Credit 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 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~~ 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, (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~~ Credit Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto. Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.02 and 2.05(a) of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (c) Any New Term Loans or New Revolving Credit Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate Class of New Term Loans or New Revolving Credit Loans, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term ~~Loan~~ Commitments of any ~~Series~~ Class are ~~effective~~effected, 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~~ 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 Term Loans of such ~~Series~~ Class 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 foregoing terms and conditions, (i) each New Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit 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 the Term Loans and be treated as the same Class as the Term B Loans. (d) Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the Class of New Revolving Credit Commitments and the New Revolving Credit Lenders of such Class or the Class of New Term Commitments and the New Term Lenders of such Class, as applicable, and (z) in the case of each notice to any Revolving Credit Lender with respect to an increase in the Revolving Credit Commitments, the respective interests in such Revolving Credit Lender’s Revolving Credit Commitments, in each case 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 or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any ~~Series~~ Class shall bebe as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth ~~herein or in~~ herein, to the ~~applicable Joinder Agreement,~~ extent not identical to ~~one~~ the Term B Loans or ~~more Classes of the existing Initial Term~~ Revolving Credit Loans~~; provided that~~ , as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the ~~applicable~~ Weighted Average Life to Maturity of all New Term ~~Loan~~ Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the Term B Loans (except by virtue of amortization or prepayment of the Term B Loans prior to the time of such incurrence); (ii) the Maturity Date of ~~each Series~~ any Class of New Revolving Credit Commitments and New Revolving Credit Loans shall be no earlier than the ~~2018B Second New Term Loan~~ maturity of the Revolving Credit Commitments and will require no scheduled amortization or mandatory commitment reduction prior to the latest applicable Maturity Date of the Revolving Credit Commitments; (iii) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Credit Commitments and the Revolving Credit Loans other than as set forth in Section 2.14(e)(ii) and (vi); provided that, notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to the provisions of Section 2.03(l) and 2.04(g) to the extent dealing with Swing Line Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swing Line Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments (and except as provided in Section 2.03(l) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swing Line Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments, except that 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 and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans. Any New Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the Revolving Credit Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Credit Commitments hereunder (including New ~~Term Loans that are Refinancing~~ Revolving Credit Commitments and any original Revolving Credit Commitments~~, no earlier~~ ) which have more than ~~that~~ three different Maturity Dates; (iv) the Maturity Date of ~~the Term Loans being refinanced) and mandatory prepayment rights (other than scheduled amortization)~~ any Class of the New Term Loans ~~and~~ shall be no earlier than the ~~existing~~ maturity of the Term B Loans; (v) the New Term Loans ~~shall~~ will share ratably in right of prepayment with the Term Loans pursuant to Section 2.05(b) or otherwise, provided that the New Term Loans may be ~~identical,~~ afforded lesser payments; (iivi) the ~~fees, pricing and the amortization schedule~~ yield applicable to the New Term Loans or New Revolving Credit Loans of each ~~Series~~ Class 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 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 and New Term Commitments that are ~~Refinancing Commitments~~secured equally and ratably with the Facilities, ~~later than~~ the ~~commitment termination date of the~~ yield applicable to such New Term Loans or New Revolving Credit ~~Commitments being refinanced) and~~ Loans (~~b) fees and pricing as agreed between the Borrower and the Lenders providing~~ after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such New Term Loans or such New Revolving Credit ~~Commitments~~Loans) shall not be greater than the applicable interest rate payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Term B Loans or Revolving Credit Loans, as applicable (including any upfront or similar fees or original issue discount paid and payable to the Lenders hereunder), plus 50 basis points per annum unless the interest rate with respect to the Term B Loan or Revolving Credit Loan, as applicable, is increased so as to cause the then applicable interest rate under this Agreement on the Term B Loans or Revolving Credit Loans, as applicable (including any upfront or similar fees or original issue discount paid and payable to the Lenders hereunder and the adjustment of any interest rate floor) to equal the yield then applicable to the New Term Loans or New Revolving Credit Loans, as applicable (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such New Term Loans) minus 50 basis points; provided that customary arrangement or commitment fees payable to the Arrangers (or their respective affiliates) or one or more arrangers of Facilities under this Section 2.14 shall be excluded; and (vii) the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term B Loans and Revolving Credit Loan; provided that the New Term Loans and/or New Revolving Credit Loans may be junior to the Term B Loans and Revolving Credit Loans if subject to the Second Lien Intercreditor Agreement. (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 reasonable opinion of Administrative Agent and the ~~Administrative Agent,~~ Borrower to effect the ~~provision~~ provisions of this Section 2.14, and for the avoidance of doubt, this Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary. (ig) The ~~Borrower may at any time~~ Loans and ~~from time~~ Commitments extended or established pursuant to ~~time request that all or a portion of the Term~~ this paragraph shall constitute Loans ~~of any Class (an “Existing Term Loan Class”)~~ and Commitments under, and shall be ~~converted to extend the scheduled maturity date(s) of any payment of principal with respect~~ entitled to all ~~or a portion of~~ the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents, provided that the lien securing 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 New 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~~ junior to the ~~scheduled amortization payments reflected in Section 2.5 or in~~ liens securing the ~~Joinder Agreement, as the case may be, with respect~~ other Loans on terms and conditions and subject to ~~the Existing Term~~ customary intercreditor arrangements. The 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 Parties shall take any ~~increased margins contemplated~~ actions reasonably required 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 ensure 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 demonstrate 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 cot

Appears in 1 contract

Sources: Credit Agreement (Quintiles Transnational Holdings Inc.)

Incremental Facilities. ~~(a) The~~ Borrower may by written notice to ~~Administrative Agent~~ Sole Lead Arranger elect to request (A) an increase to the existing Revolving Loan Commitments (any such increase, the "NEW REVOLVING LOAN COMMITMENTS"), (B) an increase to the existing Delayed Draw Term Loan Commitments ("NEW DELAYED DRAW TERM LOAN COMMITMENTS") and/or (C) 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~~ $200,000,000 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~~ $200,000,000 and all such New Revolving Loan Commitments, New Delayed Draw Term Loan Commitments ~~obtained~~ and New Term Loan Commitments), and integral multiples of $5,000,000 in excess of that amount, provided, however, that on and after January 1, 2004, Borrower may only elect the establishment of one or ~~prior to such date)~~more New Term Loan Commitments. Each such notice shall specify (A) the date (each, an ~~“Increased Amount Date”~~"INCREASED AMOUNT DATE") on which ~~the~~ Borrower proposes that the New Revolving Loan Commitments, New Delayed Draw Term Loan Commitments or the New Term Loan Commitments, as applicable, shall be ~~effective~~effective and that Loans be made pursuant to the New Term Loan Commitments ("NEW TERM LOANS"), 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 (~~other than~~ each, a ~~natural person~~"NEW REVOLVING LOAN LENDER", "NEW DELAYED DRAW TERM LOAN LENDER" or a "NEW TERM LOAN LENDER", as applicable) to ~~provide all or a~~ whom Borrower proposes any portion of ~~the~~ such New Revolving Loan Commitments, New Delayed Draw Term 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, New Delayed Draw Term Loan Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Revolving Loan Commitment, New Delayed Draw Term Loan Commitment or a New Term Loan Commitment. ~~In each case~~Such New Revolving Loan Commitments, ~~such~~ New Delayed Draw Term Loan Commitments or New Term Loan Commitments shall become effective and any such Series of New Term Loans shall be made, as applicable, 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) 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 1 contract

Sources: Credit and Guaranty Agreement (Allegiance Telecom 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 which may be in the form of a new Series of New Term Loans or an increase to the amount of Restatement Effective Date 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 (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~~ (x) $100,000,000 in the aggregate plus (y) such amount that, both before and after giving effect to the making of any Series of New Term Loans or increase in Restatement Effective Date Term Loans, the First Lien LTV Ratio does not exceed a percentage equal to 30%, in each case, 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~~ Agent), and integral multiples of $5,000,000 in excess of that amount; provided that the Borrower may elect to use clause (y) ~~shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or~~ prior to ~~such date~~clause (x). Each such notice shall specify (i) 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 (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 the Borrower proposes any portion of such New Term Loan Commitments be allocated and the ~~New Loan Commitments~~amounts of such allocations; provided that any Arranger 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. ~~In each case, such~~ Such New Term Loan Commitments shall become effective as of ~~the applicable~~ such Increased Amount Date; provided that (i1) as of the Increased Amount Date, no event shall have occurred and be continuing or would result from the consummation of the Borrowing of the New Term Loan that would constitute a Default or Event of ~~Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable~~Default; (ii2) both before and after giving effect to the making of any Series of New Term Loans or ~~New Revolving~~ increase in Restatement Effective Date Term Loans, each of the following shall be satisfied: (i) the conditions set forth in Sections 3.01(h) (provided that each reference therein to Section 7 3.01 shall be ~~satisfied~~deemed a reference to this Section 2.22 and each reference therein to the Restatement Effective Date shall be deemed a reference to the Increased Amount Date) and (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); 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); (~~iii~~3) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.01(b) or (c) after giving effect to the making of any Series of New Term Loans or increase in Restatement Effective Date Term Loans; (4) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the ~~Borrower~~ Borrower, each applicable New Term Loan Lender and the 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~~2.18(c)~~; (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,~~ designated in the applicable Joinder Agreement either as a separate series, an increase to the Restatement Effective Date Term Loans or an increase to any prior series of New Term Loans (in each case a “Series”; for purposes of this Section 2.22, the Restatement Effective Date 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 2.22, any New Term Loans shall be deemed to be, effective as of the applicable Increased Amount Date, and after the making of such New Term Loans, Restatement Effective Date 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~~ Term Loans will remain New Term Loans and ~~the New Revolving Loan Lenders and/or~~ New Term Loan ~~Lenders~~Commitments, as ~~applicable~~the case may be, ~~customary “SunGard” limited conditionality shall apply to the effectiveness~~ for purposes 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 applythis Section 2.22. (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 or any increase in Restatement Effective Date Term Loans are effective, subject to the satisfaction of the foregoing terms and ~~conditions~~conditions (including, but not limited to, delivery of a Borrowing Notice pursuant to Section 2.01(b)), (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 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. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof the Series of New Term Loan Commitments (or increase in Restatement Effective Date Term Loans) and the New Term Loan Lenders of such Series. (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 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 weighted average life to maturity of the ~~existing Initial 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~~ Restatement Effective Date 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 identicalDate, (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 that~~ Agreement and (iv) the ~~weighted average life~~ amortization schedule applicable to ~~maturity~~ any Series of ~~all~~ New Term Loans shall be ~~no shorter than~~ determined by the ~~weighted average life to maturity of~~ Borrower and the ~~2018B Second New Term Loans (or in the case~~ applicable holders of New Term ~~Loans~~ Loans; provided, however, that ~~are Refinancing Commitments, no shorter than that of~~ the ~~Term Loans being refinanced) and (iii) all other terms~~ yield applicable to the New Term Loans ~~of each Series that differ from the existing~~ (after giving effect to all upfront or similar fees, original issue discount payable or Eurodollar or Base Rate “floor” with respect to such New Term Loans ~~shall be~~ with any such upfront or similar fees or original issue discount being equated to the interest rates in a manner reasonably ~~acceptable to~~ determined by the Administrative Agent ~~(as evidenced by its execution of~~ based on an assumed four-year life to maturity) shall not be greater than 0.50% above the applicable ~~Joinder Agreement). The~~ yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Loans (including any upfront fees or original issue discount payable to the initial Lenders hereunder (but excluding customary arranger and ~~provisions of~~ underwriting fees) or Eurodollar or Base Rate “floor” applicable to Restatement Effective Date Term Loans incurred on the Restatement Effective Date) unless the interest rate with respect to the Loans is increased so as to cause the then applicable yield under this Agreement on the Loans to be not less than the yield then applicable to the New ~~Revolving~~ Term Loans (after giving effect to all upfront or similar fees or original issue discount payable to all lenders (but excluding customary arranger and underwriting fees) or Eurodollar or Base Rate “floor” with respect to such New ~~Revolving Credit Commitments shall be identical~~ Term Loans with any such upfront or similar fees or original issue discount being equated to the ~~2020 Revolving Credit Loans and~~ interest rates in a manner reasonably determined by the ~~2020 Revolving Credit Commitments; provided that New Revolving Credit Commitments may provide for (a~~Administrative Agent based on an assumed four-year life to maturity) 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) minus 0.50%. 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~~2.22. (ie) The ~~Borrower may at any time~~ New Term Loans and New Term Loan Commitments established pursuant to this Section 2.22 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably with the Obligations from ~~time~~ the Subsidiary Guarantors and security interests created by the Security Documents. Each Series of New Term Loans or New Term Loans incurred as an increase to ~~time request that all or~~ the Restatement Effective Date Term Loans shall be entitled to share in mandatory prepayments on a ~~portion~~ ratable basis with the Restatement Effective Date Term Loans and the other Series of New Term Loans (unless the holders of the New Term Loans of any ~~Class (an “Existing Term Loan Class”) be converted~~ Series agree to ~~extend the scheduled maturity date(s)~~ take a lesser share 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(fcertain prepayments). ~~In order to establish~~ The Loan Parties shall take any ~~Extended Term Loans, the Borrower shall provide a notice to~~ actions reasonably required by the Administrative Agent ~~(who shall provide a copy of such notice~~ to ~~each of~~ ensure and/or demonstrate that the ~~Lenders of~~ Lien and security interests granted by the ~~applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans~~ Security Documents continue to be ~~established, which shall be identical~~ perfected under the Uniform Commercial Code or otherwise after giving effect to the ~~Term Loans~~ establishment 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~~ any such New Term Loan 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: Senior Secured Term Loan Facility Agreement (Ocwen Financial Corp)

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 by written notice to the Administrative Agent elect to request (A) an increase to the existing Revolving Commitments (any such increase, the “New Revolving 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 up to an aggregate amount not ~~in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than~~ to exceed $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)750,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Revolving Commitments or New 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 the Administrative Agent. The ~~Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion~~ Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders willing to hold the requested New Revolving Commitments and/or New Term Loan Commitments; provided that (x) any New Revolving Commitments and/or New Term Loan Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $25,000,000, (y) 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~~Commitment and (z) any Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender” or “New Term Loan Lender,” as applicable) to whom any portion of such New Revolving Commitments or New Term Loan Commitment shall be allocated shall be subject to the approval of the Borrower and the Administrative Agent (each of which approvals shall not be unreasonably withheld) unless such New Revolving Loan Lender or New Term Loan Lender is a Lender, an Affiliate of a Lender, or an Approved Fund. Such New Revolving Commitments or New Term Loan Commitments shall become ~~effective~~ effective, as of ~~the applicable~~ such Increased Amount Date; provided ~~that~~ that, both before and after giving effect to such New Term Loan Commitments and New Revolving Commitments as if fully drawn (i1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving 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 4.2 shall be satisfied; (~~iii~~3) the Company, the Borrower and their Subsidiaries shall be in pro forma compliance with the covenants set forth in Section 6.13 as of the last day of the most recently ended fiscal quarter for which a compliance certificate has been delivered pursuant to Section 5.1(c) after giving effect to such New Revolving Commitments or New Term Loan Commitments, as applicable; (4) the New Revolving Commitments or New Term Loan ~~Commitments~~ Commitments, as applicable, shall be effected pursuant to one or more ~~Joinder Agreements~~ Additional Credit Extension Amendments executed and delivered by the ~~Borrower~~ Company, the Borrower, the 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 and shall be subject to the requirements set forth in Section 5.4(d)~~Register; (iv5) the Borrower shall make any ~~payments~~ payment of fees required pursuant to Section ~~2.11~~ 2.12(d) in connection with the New Revolving Commitments or New Term Loan Commitments, as applicable; and (v6) the Borrower shall deliver or cause to be delivered any legal ~~opinions~~ opinions, board resolutions, officer’s certificates 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 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~~ 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~~ 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~~effected, 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~~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. . The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (dy) the New Revolving Commitments and the New Revolving Loan Lenders or the New Term Loan Commitments and the New Term Loan Lenders, 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. 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~~ the existing Term Loans, and the terms and provisions of the New Revolving Commitments shall be identical to the existing ~~Initial Term Loans; provided that (i)~~ Revolving Commitments. The upfront fees payable to the ~~applicable~~ New Revolving Loan Lenders and/or 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 Lenders shall be determined by the Borrower and the applicable ~~new~~ New Revolving Loan Lenders ~~and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all~~ and/or 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)Loan Lenders. ~~The terms and provisions of the New Revolving Loans and New Revolving~~ Each Additional 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 Extension Amendment 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~~2.4. (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: Revolving Credit and Term Loan Agreement (Healthcare Trust of America Holdings, LP)

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~~ Tranche B-4 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 Tranche B-4 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 Tranche B-3 Term Loan Maturity Date or the Tranche B-4 Term Loan Maturity Date, as applicable, if the Effective Yield for LIBOR Term Loans or ABR Loans in respect of such New ~~Revolving Credit Commitments~~Term Loans exceeds the Effective Yield for LIBOR Term Loans or ABR Loans in respect of the then existing Tranche B-3 Term Loans and/or existing Tranche B-3 Term Loans, as applicable, by more than 0.50%, the Applicable Margin for LIBOR Term Loans or ABR Loans in respect of the then existing Tranche B-3 Term Loans and/or Tranche B-4 Term Loans, as applicable, shall be adjusted so that the Effective Yield in respect of the then existing Tranche B-3 Term Loans and/or Tranche B-4 Term Loans, as applicable, is equal to the Effective Yield for LIBOR Term 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 Tranche B-3 Term Loans and Tranche B-4 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 Tranche B-4 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 Tranche B-4 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 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 (Focus Financial Partners Inc.)

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~~ Amendment No. 6 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 Amendment No. 6 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 Amendment No. 6 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 Amendment No. 6 Term Loans incurred pursuant to clause (i)(a) of the definition of “Maximum Incremental Facilities Amount” that matures earlier than one year after the Amendment No. 6 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 Amendment No. 6 Term Loans by more than 0.75%, the Applicable Margin for SOFR Loans in respect of the then existing Amendment No. 6 Term Loans shall be adjusted so that the Applicable Margin in respect of the then existing Amendment No. 6 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 “Amendment No. 6 MFN Protection”), (iv) to the extent such terms and documentation are not consistent with the then existing Amendment No. 6 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 ~~Loans~~ Commitments and the ~~2020~~ related Revolving Credit ~~Commitments~~Loans, other than the Maturity Date and as set forth in this Section 2.14(e); 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)~~ 2.14 or otherwise, : (1i) 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 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 (~~other than~~ 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~~commitments (subject to clause (v) below)) of Loans with respect to ~~any Old~~ Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other ~~Old~~ 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 (2and 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 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 ~~Extended~~ Incremental Revolving Credit Commitments and ~~Extended~~ Incremental 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~~ on the applicable Increased Amount Date, (vii) any ~~obligation to agree to have any of its Revolving Credit Loans or~~ Incremental 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 may constitute a separate Class or Classes, as the case may be, of ~~revolving credit commitments~~ Commitments from the ~~Specified Existing~~ Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and ~~from any~~ other ~~Existing~~ immaterial terms of the Additional Revolving Credit ~~Commitments (together with~~ 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 ~~other Extended~~ Additional 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~~ and Additional Revolving Credit Commitments, as applicable, shall ~~notify the Administrative Agent (an “Extension Election”) on~~ not be earlier than, 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 Commitmentsshorter than, as ~~applicable. In~~ the ~~event that~~ case may be, the ~~aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment~~ maturity date 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~~remaining weighted average life, as applicable, ~~requested pursuant to~~ of the ~~Extension Request, Term Loans or Revolving Credit Commitments, New~~ Initial Revolving Credit Commitments ~~or Extended~~ and related Revolving Credit ~~Commitments~~ Loans. (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 ~~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~~ Lenders if such financial maintenance covenant is also added for 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~~ benefit of any ~~Existing Revolving~~ 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 technical and corresponding amendments to this Agreement and the other 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 Documents as may be ~~extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be co~~n

Appears in 1 contract

Sources: Credit Agreement (GoDaddy Inc.)

Common use of Incremental Facilities Clause in Contracts