Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that: (A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap; (B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom; (C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available; (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility; (E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility); (F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party; (G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments; (H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment; (I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and (J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment. (c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender). (d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto. (e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or (ii) the establishment of Incremental Term Commitments (it being agreed that the Borrower shall not be obligated to offer to any Lender the opportunity to participate in any Incremental Facility”); provided, that, the sum of the cumulative aggregate original amount of all the Incremental Commitments established under this Section 2.23 and aggregate original amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) shall not, on the date of effectiveness of any Incremental Commitments under this Section 2.23 or the date of issuance of any such Alternative Incremental Facility Indebtedness, as the case may be, exceed the Maximum Incremental Amount in effect on such date. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Facility or Facilities involvedBorrower proposes to become an Incremental Lender, (ii1) the applicable Incremental Facility Closing Dateif such Person is not then a Lender, (iii) the applicable Borrower(s) must be an Eligible Assignee and (iv2) in the case of an Incremental Term Revolving Commitment, must be reasonably acceptable to the Administrative Agent, each Issuing Bank and the Swingline Lender (in each case, to the extent the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be, would be required to consent to an assignment to such Person in accordance with Section 9.04(b)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, substantially 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; provided, that, (w) the applicable maturity date of any Incremental Term Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (x) the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility, (y) all Incremental Revolving Commitments shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations and (z) no Incremental Revolving Commitments shall be secured by any property or assets of Holdings, the Borrower or any of their Subsidiaries other than the Collateral or be guaranteed by any Person other than Holdings and Subsidiaries that are Subsidiary Loan Parties. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, substantially identical to those of (x) if any Term Loans then exist, such existing Term Loans or (y) if no Term Loans then exist, the Revolving Commitments and Revolving Loans (with appropriate modifications to reflect nature of such Incremental Term Facility and the Incremental Term Loans to be made thereunder as term loans); provided, that, (i) the upfront fees, interest rates, call protection, mandatory prepayments and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) except for Inside Maturity Accordion Indebtedness, the weighted average life to maturity of any such Incremental Term Loans and (y) shall be no shorter than the Applicable Margin for such Incremental Term Loans; provided, that:
(A) remaining weighted average life to maturity of the aggregate principal amount (or committed amount, if applicable) Class of all Incremental existing Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
longest remaining weighted average life to maturity at such time (B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingor, in the case of Incremental Term Loans which are Term B Loans, the weighted average life to maturity of any Additional Credit Extension Amendment then-existing Class of Term B Loans with respect the longest remaining weighted average life to maturity at such time), (iii) except for Inside Maturity Accordion Indebtedness, any such Incremental Term Facility will mature no earlier than the Latest Maturity Date at such time (or, in the case of Incremental Term Loans which are Term B Loans, the latest maturity date then applicable to any then-existing Class of Term B Loans), (iv) the terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall not be materially more favorable, taken as a whole, to the lenders providing such Incremental Term Facility than (x) if any Term Loans then exist, the terms applicable to such existing Term Loans or (y) if no Term Loans then exist, the terms applicable to the Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)Revolving Loans (in each case as determined by Holdings in good faith), with other than (A) (I) covenants or other provisions applicable only to periods after the financial Latest Maturity Date at such time and (II) covenants set forth in Section 7.1, recomputed as or other provisions that are also for the benefit of the last day Lenders in respect of the most recently ended fiscal quarter of Loans and Commitments outstanding at the Parent Borrower for which financial statements are available;
time such Incremental Term Facility is incurred and (DB) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Term Facility;
, customary “most-favored-nation” protection, call protection, and mandatory prepayments, in each case, which may be applicable solely with respect to such Incremental Term Facility (Eit being understood that to the extent a mandatory prepayment is required in connection with the establishment of an Incremental Term Facility, such mandatory prepayment shall be applied ratably to all then-existing Term Loans; provided, that, a Financial Officer of Holdings shall have delivered a certificate to the Administrative Agent at least two (2) Business Days prior to the incurrence of such Incremental Term Facility (or such shorter period of time as may reasonably be agreed by the Administrative Agent), together with a summary of the material terms and conditions of such Incremental Term Facility, stating that Holdings has determined in good faith that such material terms and conditions satisfy the requirements set forth in this clause (iv), which determination shall be conclusive, (v) in the case of any Incremental Term Loans that are Term B Loans, such Incremental Term Loans that are Term B Loans may, to the extent so provided in the applicable Incremental Facility Amendment, specify whether (x) the weighted average life applicable Term B Lenders shall have any voting rights in respect of the Financial Covenant (it being agreed that if any Term B Loans are incurred at a time when a Class of Term B Loans already exists, and such subsequently incurred Term B Loans shall have such voting rights, all then outstanding Term B Loans shall also have similar voting rights) and (y) any breach of the Financial Covenant would result in a Default or Event of Default for such Term B Lenders prior to maturity an acceleration of the Revolving Commitments and/or Revolving Loans by the applicable Lenders in accordance with the terms hereof as a result of such breach (it being agreed that if any Term B Loans are incurred at a time when a Class of Term B Loans already exists, and such subsequently incurred Term B Loans shall have such a default, all then outstanding Term B Loans shall also have a similar default), (vi) all Incremental Term Facilities shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations and (vii) no Incremental Term Facility shall be no earlier secured by any property or assets of Holdings or any of their Subsidiaries other than the weighted average life Collateral or be guaranteed by any Person other than Holdings and Subsidiaries that are Subsidiary Loan Parties. Any Incremental Term Commitments established pursuant to maturity an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by Holdings, the Borrower, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided, that, no Incremental Commitments shall become effective unless (i) subject to Section 1.05, no Event of Default shall have occurred and be continuing immediately before and after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) subject to Section 1.05, 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 Initial Term Facility 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 customary high-yield bridge loans whichany such representation and warranty that expressly relates to a prior date, subject to customary conditions in which case such representation and warranty shall be so true and correct on and as of such prior date, (including no payment or bankruptcy event of default), would either automatically be converted into or iii) the Borrower shall make any payments required to be exchanged for permanent Indebtedness that does not made pursuant to Section 2.18 in connection with such Incremental Commitments and the related transactions under this Section 2.23 and (iv) the Borrower shall have delivered to the Administrative Agent a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect certificate of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect a Financial Officer of the Collateral with Borrower to the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise effect set forth in this clauses (i) and (ii) above, together with calculations demonstrating (A) compliance with Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower 2.23(a) above (and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments a calculation of the applicable Term Facility unless the Parent Borrower “Maximum Incremental Amount” before and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to the establishment of such Additional Credit Extension Amendment;
Incremental Commitments and the Incremental Facilities relating thereto) and (IB) that Holdings shall be in compliance with the Financial Covenant set forth in Section 6.11, calculated on a Pro Forma Basis as of the date of establishment of such Incremental Commitments and Incremental Facilities relating thereto (and, for the avoidance of doubt, assuming for such purposes that such Incremental Facilities are fully drawn). Each Incremental Facility Amendment 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, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.23.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the Aggregate Revolving Commitment shall become be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment of any Series shall make a Lender under this Agreement pursuant loan to the Borrower in an Additional Credit Extension amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cg) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.23(e).
Appears in 3 contracts
Sources: Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicablemay, by executing and delivering written notice to the Administrative Agent from time to time, request Incremental Commitments in an Additional Credit Extension Amendment specifying amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of such increase the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and the Facility or Facilities involveda minimum amount of $5,000,000), (ii) the applicable date on which such Incremental Facility Closing DateCommitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) the applicable Borrower(s) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term LoansLoan Commitments, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for whether such Incremental Term Loan Commitments are commitments to make additional Term Loans and of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (yeach of which shall be entitled to agree or decline to participate in its sole discretion) the Applicable Margin for such Incremental Term Loans; provided, that:or any Additional Lender.
(Ab) It shall be a condition precedent to the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount effectiveness of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
Commitment that (Bi) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has shall have occurred and is be continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and or immediately after giving effect to any Additional Credit Extension Amendment such Incremental Commitments, (including ii) the making Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoLoans), no Default or Event of Default has occurred and is continuing or shall result therefrom;
not exceed 2.75:1.00, (Ciii) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans representations and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants warranties set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) Article III and in no event each other Loan Document shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects (or in all respects, except if qualified as to materiality) on and solely as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the extent required terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).
(c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the lenders providing such Borrower and the Incremental Facility;
Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (Ei) the weighted final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any Incremental then-outstanding Class of Term Facility shall be no earlier than Loans, (iii) the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing security and fees or as otherwise set forth in this Section 2.25(a), all terms the borrower and guarantors of any the Incremental Term Facility, if not consistent with the applicable existing Term Facility, Loans shall be determined between the Parent same as the Borrower and Guarantors with respect to the lenders for Term Loans, (iv) if the All-in Yield on such Incremental Term Facility and reasonably satisfactory to Loans exceeds the Administrative Agent; provided that each Incremental Term Facility shall share ratably initial All-in any mandatory prepayments Yield of the applicable Tranche B Term Facility unless Loans by more than 50 basis points (the Parent Borrower and amount of such excess above 50 basis points being referred to herein as the lenders in respect “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (iv) to the extent such consent would be required for an assignment the terms of such the Incremental Term Loans or Commitments pursuant to Section 10.6 are inconsistent with the terms set forth herein (such consent not to be unreasonably withheld, delayed or conditionedexcept as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent and, in the case of any Agent. Any Incremental Revolving Loans, the Issuing Lenders Credit Commitment (and the Swingline Lender and (iiIncremental Revolving Loans thereunder) shall become a Lender under this Agreement pursuant to be implemented as an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect increase to the Total Revolving Facility, each Borrower Credit Commitments and shall borrow be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderthereunder).
(d) Notwithstanding anything to In connection with any Incremental Commitments, the contrary in this AgreementBorrower, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower each applicable Incremental Lender shall execute and furnished deliver to the other parties hereto.
(e) The Closing Date Administrative Agent an Incremental Revolving Commitments shall be provided on the Closing Date as Assumption Agreement providing for such Incremental Revolving Commitments, subject and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 5 4.02, all to the same extent applicable reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the initial Revolving effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and without any further amendment Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25.
(e) Upon each increase in the Revolving Credit Commitments pursuant to this AgreementSection 2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 3 contracts
Sources: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Incremental Facilities. The Borrower Representative may by written notice to the Administrative Agent elect to request (aA) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time prior to time agree that such Lenders shall makethe Revolving Commitment Termination Date, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” ”) and/or (B) the increase in or the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount not in excess of the greater of (i) $200,000,000 in the aggregate and any facility under not less than $10,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $200,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date) and (ii) up to an additional amount of Incremental Term Loans or increases to the Incremental Revolving Commitments are made availableso long as the Secured Leverage Ratio (calculated on a pro forma basis) is no more than 3.50:1.00, an “Incremental Facility”)in each case, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Revolving Commitments, assuming a borrowing of the maximum amount of Loans available thereunder; provided that, in either case, Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Commitments or Incremental Term Loans being incurred 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 finance a Permitted Acquisition the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations and any Lender approached to provide all or a similar permitted Investment designated by portion of the Parent Borrower Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment, as a “Limited Conditionality Acquisition”, applicable. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Incremental Revolving Commitments or (y) otherwiseIncremental Term Loan Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (2) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans Loans, each of the conditions set forth in Section 3.02 shall be satisfied or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
waived; (C3) the Parent U.S. Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants covenant set forth in Section 7.1, recomputed 6.07 (assuming for this purpose that such financial covenant is in effect) as of the last day of the most recently ended fiscal quarter of the Parent Borrower four Fiscal Quarter period for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (I4) without the consent of Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower Representative, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, (x) and each increase effected pursuant to this paragraph of which shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, recorded in the case of any Incremental Revolving Loans, Commitment Register or the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Term Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark LoanRegister, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted and each Incremental Revolving Loan Lender and Incremental Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as Loan Lender shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions requirements set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.in
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc)
Incremental Facilities. The Borrower Representative may by written notice to the Administrative Agent at any time more than 90 days after the Closing Date elect to request (aA) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time prior to time agree that such Lenders shall makethe Revolving Commitment Termination Date, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loans Loan Commitments”), by an amount not in excess of $250,000,000 in the aggregate and not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $250,000,000 and all such Incremental Revolving Commitments are made availableand Incremental Term Loan Commitments obtained 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 Representative proposes that the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental FacilityRevolving Loan Lender” or “Incremental Term Loan Lender”), as applicable) to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, by executing be allocated and delivering to the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Additional Credit Extension Amendment specifying (i) the amount Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such increase and the Facility or Facilities involved, Increased Amount Date; provided that (ii1) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Incremental Revolving Commitments or (y) otherwiseIncremental Term Loan Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (2) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Series of Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 3.02 shall result therefrom;
be satisfied; (C3) the Parent U.S. Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to compliance with each of the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed 6.07 as of the last day of the most recently ended fiscal quarter Fiscal Quarter after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent in connection with any such transaction and (7) the applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the Parent Borrower foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans 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 will be held by existing Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan of the applicable Class and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which financial statements any Incremental Term Loan Commitments of any Series are available;
effective, subject to the satisfaction of the foregoing terms and conditions, (Di) each Incremental Term Loan Lender of any Series shall make a Loan to the Borrowers (an “Incremental Term Loan”) in no event an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any Series shall it be become a condition Lender hereunder with respect to the effectiveness ofIncremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower Representative’s notice of each Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, or Borrowing underas applicable and (z) in the case of each notice to any applicable Lender with Revolving Commitments, any the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the Incremental Facility that any representation or warranty Term Loans and Incremental Term Loan Commitments of any Loan Party be true and correct in all material respectsSeries shall be, except and solely as otherwise set forth herein or in the Joinder Agreement, identical to the extent required by Tranche B Term Loans of the lenders providing such same Class. The terms and provisions of the Incremental Facility;
(E) Revolving Loans shall be identical to the weighted average life to maturity Revolving Loans of the same Class. In the case of any Incremental Term Facility Loans, (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 Tranche B Terms Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the weighted average life to final maturity of the Initial Term Facility Loans, and (except in iii) the case of customary high-yield bridge loans which, subject and all other terms applicable to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments each Series shall rank pari passu in right of payment and right of security in respect of be determined by the Collateral with the Term Loans Borrower Representative and the Revolving Loans applicable new Lenders and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)each applicable Joinder Agreement; provided, all terms of any Incremental Term Facilityhowever, if not consistent with that the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise yield applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement Term Loans (after giving effect to all rate floors and all fees or original issue discount payable with respect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditionedTerm Loans), shall be as reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed determined by the Administrative Agent, on each Incremental Facility Closing Date shall not be greater than the applicable interest rate (including the Applicable Margin and rate floor) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Tranche B Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if plus 0.25% per annum unless (i) each such Type, Eurocurrency the interest rate with respect to the Tranche B Term Loans is increased so as to cause the then applicable interest rate under this Agreement on the Tranche B Term Loans to be not more than 0.25% less than the yield then applicable to the Incremental Term Loans (after giving effect to all rate floors and all fees or Term Benchmark Tranche had been borrowed or effected by such Borrower on original issue discount payable with respect to such Incremental Facility Closing Date Term Loans) and (ii) the aggregate interest rate with respect to Tranche A Term Loans is increased by an amount equal to the amount of each such Type, Eurocurrency any increase in the interest rate for Tranche or B Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed Loans pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable clause (i). Any Incremental Revolving Loans will be documented solely as an increase to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, Revolving Commitments of the same Class without any change in terms, other than any change that is more favorable to the Revolving Lenders and applies equally to all Revolving Loans and Revolving Commitments of the same Class. Each Joinder Agreement may, without the consent of any Lender other than the applicable Incremental Revolving Loan Lender or Incremental Term Loan Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration opinion of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and to effect the Parent Borrower and furnished to the other parties heretoprovisions of this Section 2.24.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/), Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/), Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may request, from time to time agree time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such Lenders shall make, obtain or other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the amount of their Incremental Term Loans or “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Credit Commitments” and ”) and/or (ii) the establishment of one or more new term loan commitments (any facility under which such increase, the “Incremental Term Loans Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Revolving Commitments are made available, an “Incremental Facility”)Term Loan Commitments, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedshall be effective, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term LoansLoan Commitments, as applicable, be allocated and the amount of such allocations; providedprovided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, that:
(A) and any Lender approached to provide all or a portion of the aggregate principal amount (Incremental Revolving Credit Commitments or committed amountIncremental Term Loan Commitments may elect or decline, if applicable) of all in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, made on an Increased Amount Date shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance be designated a Permitted Acquisition or a similar permitted Investment designated separate series identified by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event year of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
Loans (H) any or month and year if there are multiple Incremental Revolving Commitments and the Revolving Term Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders maturing in the same Eurocurrency Tranche or Term Benchmark Trancheyear) (each, as applicable (or, until the expiration a “Series”) of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to for all purposes of this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders (including New Lenders) may from time occasions, by written notice to time agree the Administrative Agent, request the establishment of Incremental Commitments, provided that such Lenders shall make, obtain or increase the amount of their any Incremental Term Loans Commitments established hereunder shall not exceed the amount of additional Indebtedness permitted at the time such Incremental Commitments are established to be Incurred under Section 9.01(b)(1). Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under shorter period as may be agreed to by the Administrative Agent) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iii) the amount of the Incremental Commitments being requested (it being agreed that (A) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Commitment and (B) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and otherwise satisfy the requirements of Section 12.04(b)(i)).
(b) The terms and conditions of any Incremental Commitments and the Incremental Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility or Facilities involvedAgreement, identical to those of the Commitments and the Loans; provided that (i) if the Weighted Average Yield applicable to any Incremental Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield under the terms of this Agreement, as amended through the date of such calculation, with respect to Loans, then the Applicable Margin then in effect for Loans shall automatically be increased to the extent necessary to eliminate such excess, (ii) the applicable Average Life of any Incremental Facility Closing Date, Loans shall be no shorter than the remaining Average Life of the Loans and (iii) the applicable Borrower(s) and (iv) Maturity Date for any Incremental Loan shall not be earlier than the Final Maturity Date in effect on the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for date such Incremental Term Loans and (y) the Applicable Margin for such Loan is made. Any Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Commitments established pursuant to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable an Incremental Facility Activation DateAgreement that have identical terms and conditions, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Loans made thereunder, shall be designated as a separate Class of Incremental Commitments thereunder (and assuming, in the case Incremental Loans for all purposes of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;this Agreement.
(Dc) in no event The Incremental Commitments shall it be a condition effected pursuant to the effectiveness of, one or Borrowing under, any more Incremental Facility that any representation or warranty of any Loan Party be true Agreements executed and correct in all material respects, except and solely to the extent required delivered by the lenders Borrower, each Incremental Lender providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans Commitments and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments and the making of Loans thereunder, (Iii) 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 and (iii) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender (other than the Incremental Lenders party thereto), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) give effect to the extent such consent would be required for an assignment provisions of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)Section.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, a Lender (but only to the extent) necessary to reflect the existence and terms a Lender in respect of Commitments and Loans of the Incremental Term applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of a Lender (and a Lender in respect of Commitments and Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Class shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 5 to 2.08(a) and of the same extent applicable to effectiveness of any Incremental Commitments, in each case advising the initial Revolving Commitments and without any further amendment to this AgreementLenders of the details thereof.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) Representative may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering written notice to the Administrative Agent elect to request the establishment of one or more increases in Commitments of any Class (the “Incremental Revolving Credit Commitments”), by an Additional aggregate amount not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time) and in a multiple of $100,000 in excess thereof. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Credit Extension Amendment specifying Commitments shall be effective. The Borrower Representative may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment, and the Borrower Representative shall have no obligation to approach any existing Lender to provide any Incremental Revolving Credit Commitment. If the existing Lenders approached by the Borrower Representative (if any) are unwilling to increase their applicable commitments by an amount equal to the requested Incremental Revolving Credit Commitments, the Administrative Agent, at the request of and in consultation with Borrower Representative, will use its commercially reasonable efforts to obtain one or more Persons (other than any natural Person) which are not then Lenders (which Persons may be suggested by the Borrower Representative) to become party to the Credit Documents and to provide a commitment to the extent necessary to satisfy Borrower Representative’s request for Incremental Revolving Credit Commitments, as the case may be; provided, however, (a) compensation for any such assistance by the Administrative Agent shall be mutually agreed by the Administrative Agent and Borrower Representative, (b) such assistance shall be subject to the execution of a customary engagement letter and (c) Administrative Agent shall have no obligation to provide any such Incremental Revolving Credit Commitment. In each case, such Incremental Revolving Credit Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) (x) other than as described in the amount immediately succeeding clause (y), no Event of Default shall exist on such increase and the Facility Increased Amount Date immediately before or Facilities involvedimmediately after giving effect to such Incremental Revolving Credit Commitments or (y) if such Incremental Revolving Credit Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under Section 12.1 or Section 12.5 shall exist on such Increased Amount Date, (ii) the applicable Incremental Facility Closing DateRevolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower Representative and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 6.4(e) and (iii) the applicable Borrower(s) and (iv) Borrowers shall make any payments required pursuant to Section 2.11 in connection with the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Credit Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no applicable. No Lender shall have any obligation to participate in provide any increase described in Commitments pursuant to this paragraph unless it agrees Section 2.14(a). For all purposes of this Agreement, any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated a part of the series of existing Commitments of the applicable Class subject to do so in its sole discretionsuch increase.
(b) Any New Lender that elects On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to provide Commitments the satisfaction of the foregoing terms and conditions, (i) each loan made (including, where applicable, a loan made by way of Banker’s Acceptances or BA Equivalent Notes) under an Incremental Facility Revolving Credit Commitment (ian “Incremental Revolving Credit Loan”) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent anddeemed, in the case of any Incremental Revolving Loansfor all purposes, the Issuing Lenders and the Swingline Lender a Loan and (ii) each Lender with an Incremental Revolving Credit Commitment (each an “Incremental Revolving Loan Lender”) shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under this Agreement pursuant Section 14.6(b) for an assignment of Incremental Revolving Credit Loans or Incremental Revolving Credit Commitments, as applicable, to an Additional Credit Extension Amendmentsuch Incremental Revolving Loan Lender.
(c) Unless otherwise agreed by On any Increased Amount Date, each Lender in respect of the Administrative Agent, on applicable Class of Commitments immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Facility Closing Date with Revolving Loan Lender in respect of such increase, and each such Incremental Revolving Loan Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit, so that after giving effect to each such deemed assignment and assumption of participations, the Revolving Facility, percentage of the aggregate outstanding participations hereunder in such Letters of Credit held by each Borrower shall borrow Lender holding Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) including each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Revolving Loan or Adjusted Term SOFR Rate for any Term Benchmark LoanLender), as applicable, borrowed will equal the percentage of the aggregate Total Revolving Credit Commitments of all Lenders under the Credit Facilities. In connection with any Incremental Revolving Credit Commitment hereunder, upon the request of the Borrower Representative, the Letter of Credit Commitment may be increased with the approval of the Letter of Credit Issuer and the Administrative Agent by an amount not to exceed the amount of such Incremental Revolving Credit Commitment, in their sole and absolute discretion. Additionally, if any Revolving Loans of the Class of Revolving Loans that are being increased are outstanding at the time any Incremental Revolving Credit Commitments are established, the applicable Lenders immediately after effectiveness of such Incremental Revolving Credit Commitments shall purchase and assign at par such amounts of the Revolving Loans of such Class outstanding at such time as the Administrative Agent may require such that all of the Lenders effectively participate in each of the outstanding Revolving Loans of such Class on a pro rata basis of their Revolving Credit Commitment Percentages in respect of such Class immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)sentence.
(d) Notwithstanding anything Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the contrary Class of Commitments subject to such increase and the related Revolving Loans of such Class; provided, that underwriting, arrangement, upfront or similar fees that may be agreed to among the Borrower Representative and the Lenders providing and/or arranging such Incremental Revolving Credit Commitments may be paid in this Agreementconnection with such Incremental Revolving Credit Commitments.
(e) Each Joinder Agreement may, each without the consent of the parties hereto hereby agrees thatany other Lenders, on each Incremental Facility Closing Date, effect technical and corresponding amendments to this Agreement shall be amended to and the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment other Credit Documents as may be effected necessary or appropriate, in writing by the opinion of the Administrative Agent and the Parent Borrower and furnished Representative, to effect the other parties heretoprovisions of this Section 2.14.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders (including New Lenders) may from time occasions after the Closing Date, by written notice to time agree the Administrative Agent, request the establishment of Incremental Commitments to be provided solely by Corre, Corre Affiliates or any other Eligible Assignee approved by Corre in its sole discretion; provided that such Lenders shall make, obtain or increase the aggregate amount of their the Incremental Term Loans Commitments incurred under this Section 2.12 on any date shall not exceed the Available Incremental Amount. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than five (5) Business Days (or Revolving Commitments such shorter period as may be agreed to by the Administrative Agent (any such increased Revolving Commitments, “at the direction of the Incremental Revolving Commitments” and any facility under Lenders)) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of the Incremental Commitments being requested (it being agreed that Corre, the Corre Affiliates or any such increase Eligible Assignee may elect or decline, in their sole discretion, to provide such Incremental Commitments).
(b) The terms and the Facility or Facilities involvedconditions of any Incremental Loans to be made thereunder shall be, (ii) except as otherwise set forth in the applicable Incremental Facility Closing DateAmendment, (iii) substantially consistent to those of the applicable Borrower(s) 2025 Term Commitments and (iv) in the case of Incremental 2025 Term Loans.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Borrower, (w) the applicable each Incremental Term Maturity Date, (x) the amortization schedule for Lender providing such Incremental Term Loans Commitments and (y) the Applicable Margin for such Administrative Agent; provided that no Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, Commitments shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, become effective unless no Default or Event of Default has shall have occurred and is be continuing as of on the date of entry into the applicable acquisitioneffectiveness thereof, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, both immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments (I) without and assuming that the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum full amount of at least $50,000,000 and (y) no more than five such Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender Commitments 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such been funded as Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderdate).
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only to the extent) necessary to reflect the existence or Lenders in respect of Commitments and terms Loans of the Incremental Term applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in Section 5 the applicable Incremental Facility Amendment, each Lender holding an Incremental Commitment shall make an Incremental Loan to the same extent applicable Borrower in an amount equal to such Incremental Commitment on the initial Revolving Commitments and without any further amendment to this Agreementdate specified in such Incremental Facility Amendment.
Appears in 2 contracts
Sources: Second Lien Term Loan Credit Agreement (Team Inc), Second Lien Term Loan Credit Agreement (Team Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders (including New Lenders) occasions at any time after the Closing Date, the Obligors may from time by written notice to time agree that such Lenders shall make, obtain or the Administrative Agent elect to request an increase to the amount of their Incremental Term Loans or Revolving existing Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under the loans made thereunder, the “Incremental Loans”) in an aggregate amount not to exceed $300,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Obligors propose that such Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent. Incremental Term Loans Commitments may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to make, or provide commitments with respect to, an Incremental Revolving Commitments are made availableLoan) or by any other Person (each, an “Incremental FacilityLender”), as applicable, by executing and delivering ; provided that any such Incremental Lender to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower, the Administrative Agent Agent, the Issuing Banks and the Swingline Lender unless such Incremental Lender is an Additional Credit Extension Amendment specifying existing Lender (each of which approvals shall not be unreasonably withheld, conditioned or delayed). The terms and provisions of any Incremental Commitments shall be identical to the existing Commitments.
(b) The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent:
(i) the amount of immediately prior to and after giving pro forma effect to such increase Incremental Commitments and borrowings and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case use of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”proceeds thereof, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefromexist;
(Cii) the Parent Borrower representations and warranties made or deemed made by the Obligors in Article III hereof shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, respects on the Increased Amount Date except and solely to the extent required by that such representations and warranties expressly relate solely 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) and except for changes in factual circumstances specifically and expressly permitted under the lenders providing such Incremental FacilityLoan Documents;
(Eiii) the weighted average life Administrative Agent shall have received one or more Additional Credit Extension Amendments, providing for Incremental Commitments in the amount of such increase; and
(iv) the Administrative Agent shall have received an opinion of counsel to maturity the Loan Parties (in substantially the same form as delivered on the Closing Date which may at the option of any the Borrower be delivered by internal counsel of the Loan Parties), and addressed to the Administrative Agent and the Lenders.
(c) On each Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders shall assign to each of the Incremental Term Facility Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be no earlier than necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders and Incremental Lenders ratably in accordance with their Commitments after giving effect to the weighted average life addition of such Incremental Commitments to maturity the Commitments, (b) each Incremental Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and (c) each Incremental Lender shall become a Lender with respect to its Incremental Commitment and all matters relating thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of notice of each Increased Amount Date and in respect thereof (y) the Initial Term Facility Incremental Commitments and the Incremental Lenders, and (except z) in the case of customary high-yield bridge loans whicheach notice to any existing Lender, the respective interests in such ▇▇▇▇▇▇’s Revolving Loans, in each case subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);assignments contemplated by this Section.
(Fe) all Any upfront fees payable to the Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, Lenders shall be determined between by the Parent Borrower and the lenders for such applicable Lenders.
(f) The Incremental Term Facility Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and reasonably satisfactory to delivered by the Obligors, the Incremental Lender and the Administrative Agent; provided that , and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.04.
(g) Upon each increase in the Commitments pursuant to this Section,
(i) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Term Facility shall share ratably Lender, and each such Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such ▇▇▇▇▇▇’s participations hereunder in any mandatory prepayments outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the applicable Term Facility unless aggregate outstanding (1) participations hereunder in Letters of Credit and (2) participations hereunder in Swingline Loans held by each Lender will equal the Parent Borrower and percentage of the lenders in respect aggregate Commitments of all Lenders represented by such ▇▇▇▇▇▇’s Commitments; and
(ii) if, on the date of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the increase, there are Revolving Loans in respect thereof then outstanding, the Borrower shall be prepay such Revolving Loans (and pay any additional amounts required pursuant to Section 2.15 in connection therewith) with the terms hereof otherwise applicable proceeds of Revolving Loans from the Incremental Lender(s) to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement extent necessary in order that, after giving effect to such Additional Credit Extension Amendment;
prepayments and borrowings, all Revolving Loans will be held ratably by the Lenders (Iincluding the Incremental Lender(s)) without in accordance with their respective Commitments after giving effect to the consent of the applicable Incremental Commitment(s). The Administrative Agent, (x) each increase the Issuing Banks and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender2.04(g).
(dh) Notwithstanding anything Any upfront fees payable to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement Lenders shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing determined by the Administrative Agent Borrower and the Parent Borrower and furnished to the other parties heretoapplicable Lenders.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Millicom International Cellular Sa), Revolving Credit Agreement (Millicom International Cellular Sa)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableoccasions, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying and with the consent of the Administrative Agent and the Incremental Lenders, request (i) during the amount period from and including the Restatement Effective Date to but not including the Revolving Maturity Date (or any earlier date on which the Commitments have been terminated as provided herein), the establishment of such increase and the Facility or Facilities involved, Incremental Revolving Commitments and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with provided that the aggregate principal amount of any Permitted all the Incremental Equivalent Debt, Commitments established hereunder shall not exceed $500,000,000 (the “Incremental Committed Amount”). Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Cap;
Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 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 and (B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or 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 Lender, must be an Eligible Assignee).
(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 hereunder, and shall be treated as a single class with respect such Revolving Commitments and Loans. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be as set forth in the applicable Incremental Facility Agreement; provided that (i) no Incremental Term Maturity Date shall be earlier than, and no Incremental Term Loans shall require any repayment or prepayment of any principal amount thereof (other than amortization payments not in excess of 1% per annum of the initial principal amount of such Incremental Term Loans) prior to, the Revolving Maturity Date, (ii) Incremental Term Loans shall not have the benefit of any guarantees or collateral that do not equally benefit the Revolving Commitments and Loans and (iii) Incremental Term Loans shall not have the benefit of any representation or warranty, covenant or event of default other than those set forth herein. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans being incurred made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Credit Agreement.
(c) The Incremental Commitments shall be effected pursuant to finance a Permitted Acquisition one or a similar permitted Investment designated more Incremental Facility Agreements executed and delivered by the Parent Borrower as a “Limited Conditionality Acquisition”Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default has shall have occurred and is be continuing as of on the date of entry into the applicable acquisitioneffectiveness thereof, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, both immediately prior to and immediately after giving effect to any Additional Credit Extension Amendment (including such Incremental Commitments and the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)and issuance of Letters of Credit thereunder on such date, no Default or Event (ii) on the date of Default has occurred effectiveness thereof, the representations and is continuing or shall result therefrom;
(C) warranties of the Parent Borrower set forth in the Credit Documents shall be true and correct (A) in compliancethe 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 any Incremental Facility Activation Datesuch date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, except in the case of any Additional Credit Extension Amendment with respect such representation and warranty that expressly relates to Incremental Revolving Commitments that a prior date, in which case such commitments are fully drawn) without the netting of proceeds thereof representation and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event warranty shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be so true and correct in all material respects, except on and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
prior date, (Hiii) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments and the making of Loans and other extensions of credit thereunder on the date of effectiveness thereof, the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.2, (Iiv) the Borrower shall make any payments required to be made pursuant to Section 3.14 in connection with such Incremental Commitments and the related transactions under this Section and (v) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Credit Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable class) hereunder and under the other Credit Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) in the Issuing Lenders and case of an Incremental Lender that does not already have a Revolving Commitment, such Incremental Revolving Commitment shall constitute the Swingline Revolving Commitment of such Incremental Lender and (iiB) in the case of an Incremental Lender that already has a Revolving Commitment, the Revolving Commitment of such Incremental Lender shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Incremental Revolving Commitment, and the Revolving Loan Commitment Percentages of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit and Swing Line Loans outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit and Swing Line Loans will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Revolving Loan Commitment Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Incremental Term Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in this Section and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Revolving Loan Commitment Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.7(e).
Appears in 2 contracts
Sources: Credit Agreement (Quest Diagnostics Inc), Credit Agreement (Quest Diagnostics Inc)
Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower and any time, on one or more Lenders occasions pursuant to an Incremental Facility Agreement (including New Lendersi) may from time to time agree that such Lenders shall make, obtain add one or more new tranches of term facilities and/or increase the principal amount of their Incremental the Tranche B-1 Term Loans or any Additional Term Loans by requesting new term loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving “cash-flow” facilities and/or increase the aggregate amount of Commitments of any existing Class of Incremental Revolving Commitments (any such increased new tranche or increase, an “Incremental Revolving CommitmentsFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving CommitmentsLoans” and and, together with any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable “Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans”); provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with provided that the aggregate principal amount of any Permitted all Incremental Equivalent Debt, Facilities incurred after the Third Amendment Effective Date shall not exceed the Incremental Cap;; provided, further, that:
(Bi) no Incremental Commitment may be less than $5,000,000,
(xii) except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Facility or Incremental Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) no Incremental Revolving Facility will mature earlier than any then-applicable Latest Revolving Loan Maturity Date or require any scheduled amortization or mandatory commitment reduction prior to such Maturity Date,
(v) the Effective Yield applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided that in the case of any Incremental Term Facility which are pari passu with the Initial Term Loans in right of payment and with respect to security, such Effective Yield applicable thereto will not be more than 0.50% higher than the Effective Yield applicable to the Class of Initial Term Loans denominated in the same currency as such Incremental Term Facility unless the Applicable Rate with respect to such Initial Term Loans is adjusted to be equal to the Effective Yield with respect to the relevant Incremental Term Facility, minus 0.50%,
(vi) the final maturity date with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by shall be no earlier than the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as Latest Term Loan Maturity Date at the time of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;incurrence thereof,
(Cvii) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect Weighted Average Life to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity Maturity of any Incremental Term Facility shall be no earlier shorter than the weighted average life remaining Weighted Average Life to maturity Maturity of the Initial then-existing tranche of Term Loans (without giving effect to any prepayments thereof),
(viii) (A) any Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall may rank pari passu with or junior to any then-existing tranche of Term Loans in right of payment and right pari passu with or junior to any then-existing tranche of Term Loans with respect to security in respect of or may be unsecured (and to the Collateral extent the relevant Incremental Facility is pari passu with or subordinated to the Term Loans in right of payment or security and the Revolving Loans and none of the obligors or guarantors with respect thereto documented in a separate agreement, it shall be a subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person that which is not a Loan Party;Party or (y) secured by any assets other than the Collateral,
(GA) except any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security shall be made on a pro rata basis with such existing Term Loans and (B) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall be made on a junior basis with respect to pricing such existing Term Loans (and fees all other then-existing Additional Term Loans requiring ratable prepayment), except, in each case, that the Borrower and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(x) except as otherwise set forth agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Section 2.25(a)Agreement, no Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility,
(xi) except as otherwise required or permitted in clauses (v) through (ix) above, all other terms of any Incremental Term Facility, if not consistent with the applicable existing terms of the Initial Term FacilityLoans, shall be determined between reasonably satisfactory to the Parent Borrower and the lenders for Administrative Agent (it being understood that (x) any terms which are not consistent with the terms of the Initial Term Loans and are applicable only after the then-existing Latest Term Loan Maturity Date shall be deemed satisfactory to the Administrative Agent and (y) terms contained in such Incremental Term Facility that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and reasonably are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Agreement) shall be deemed satisfactory to the Administrative Agent; provided that each ),
(xii) the proceeds of any Incremental Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement,
(xiii) on the date of the making of any Incremental Term Facility shall share ratably Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of Section 2.08 or 2.13, such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the terms hereof otherwise applicable to same type with the Revolving Facility and same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Term Loans will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional Credit Extension Amendment;
(I) without the consent Term Loans, as applicable, of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount same type with the same Interest Period of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Daterespective Class; and
(Jxiv) at no Lender time shall have there be more than three separate Maturity Dates in effect with respect to any obligation to participate in existing Additional Revolving Facility at any increase described in this paragraph unless it agrees to do so in its sole discretiontime.
(b) Any New Lender Incremental Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Lender”); provided that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 Administrative Agent shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided further that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iv) the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(x) above has been satisfied.
(e) To the extent the Borrower elects to implement any Incremental Revolving Facility, then notwithstanding any other provision of this Agreement to the contrary, the Borrower shall be permitted (without the consent of any Term Lender) to amend the terms of this Agreement pursuant to an amendment hereto (or an amendment and restatement hereof), in form and substance reasonably satisfactory to the Administrative Agent andAgent, in order to appropriately incorporate revolving facility provisions, including those relating to (i) conditions to borrowing, payments, prepayments, purchases of participations and reallocation mechanisms, letter of credit, swingline and/or other subfacilities, (ii) mechanisms to allow for additional Incremental Revolving Facilities (e.g. pro rata treatment and exceptions to such pro rata treatment upon the case maturity of any such Incremental Revolving Facility), (iii) tranche voting by revolving lenders with respect to conditions precedent to the making of revolving loans, any financial covenant required in connection with any Incremental Revolving Loans, Facility and definitions relating to the Issuing foregoing and (iv) consent by any issuing bank or swingline lender to matters affecting its rights or obligations in such capacity. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any other amendments to this Agreement and the Swingline Lender and (ii) shall become a Lender under this Agreement other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended pursuant to an Additional Credit Extension Amendmentthis Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.22.
(cf) Unless otherwise agreed by To the Administrative Agent, on each extent the provisions of clause (a)(xiii) above require that Term Lenders making new Incremental Facility Closing Date with respect Term Loans add such Incremental Term Loans to the Revolving Facility, each Borrower shall borrow Revolving then outstanding borrowings of LIBO Rate Loans under of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount respective Class of each Type of Loan of such Borrower (and, in the case of Eurocurrency Initial Term Loans or Additional Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the other Lenders in respective Class and which will end on the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration last day of the then-current such Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(dg) Notwithstanding anything to the contrary in this AgreementSection 2.22 or in any other provision of any Loan Document, each if the proceeds of the parties hereto hereby agrees that, on each any Incremental Facility Closing Dateare intended to be applied to finance an acquisition and the Lenders or Additional Lenders providing such Incremental Facility so agree, this Agreement the availability thereof shall be amended subject to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans customary “SunGard” or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto“certain funds” conditionality.
(eh) The Closing Date Incremental Revolving Commitments This Section 2.22 shall be provided on the Closing Date as Incremental Revolving Commitments, subject supersede any provision in Section 2.18 or 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (PQ Group Holdings Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “in respect of the Global Tranche Commitments and/or the US Tranche Commitments and/or (ii) the establishment of Incremental Facility”)Term Loan Commitments. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loan 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 executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoan Commitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Loan Commitment and (y) any Person that the Applicable Margin for such Company proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not then a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Lender, all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, the Issuing Lenders Banks and the Swingline Lender Lender). Notwithstanding anything herein to the contrary, the aggregate Dollar Amount (calculated based on the Dollar Amount of such Indebtedness on the date such Indebtedness was incurred, in the case of Incremental Term Loan Commitments, or first committed, in the case of Incremental Revolving Commitments) of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20, together with the aggregate Dollar Amount (calculated based on the Dollar Amount of such Indebtedness on the date such Indebtedness is incurred) of all Incremental Equivalent Notes previously (or substantially simultaneously) incurred pursuant to Section 6.05(n), shall not exceed the sum of (A) $500,000,000 plus (B) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Effective Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (B)) plus (C) unlimited additional Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Notes so long as, after giving pro forma effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full, but excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments and Incremental Equivalent Notes for purposes of netting cash and Cash Equivalents in the calculation of the Leverage Ratio), the Leverage Ratio shall not exceed 3.50 to 1.00 (other than to the extent such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes are incurred pursuant to this clause (C) concurrently with the incurrence of Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes in reliance on clause (A) of this sentence, in which case the Leverage Ratio shall be permitted to exceed 3.50 to 1.00 to the extent of such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Notes may be incurred pursuant to this clause (C) prior to utilization of the amount set forth in clause (A) of this sentence.
(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 (including the Tranche under which such Incremental Revolving Commitment is being effected), and shall be treated as a single Class with such Revolving Commitments and Loans under such Tranche. The terms and conditions of any Incremental Term Loan 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 the Tranche A Term Loan Commitments and the Tranche A Term Loans; provided that (i) the interest rate margins with respect to any Incremental Term Loans shall be as agreed by the Company and the lenders in respect thereof, (ii) any Incremental Term Loan shall become have terms, in the Company’s reasonable judgment, customary for a Lender term loan of such type under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule with respect to any Incremental Term Loans shall be as agreed by the Company and the lenders in respect thereof, provided that the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche A Terms Loans and Incremental Term Loans with the longest remaining weighted average life to maturity, (iv) no Incremental Term Maturity Date with respect to Incremental Term Loans shall be earlier than the Tranche A Term Loan Maturity Date, (v) except as set forth above (or otherwise customary for Incremental Term Loans of such type), the Incremental Term Loans shall be treated no more favorably than the Tranche A Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans; provided further that any Incremental Term Loans may add additional covenants or events of default not otherwise applicable to the Tranche A Term Loans or covenants more restrictive than the covenants applicable to the Tranche A Term Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Facility so long as all Lenders receive the benefits of such additional covenants, events of default or more restrictive covenants (unless such additional covenants, events of default or more restrictive covenants are customarily limited to term loans of the type of such Incremental Term Loans), (vi) to the extent the terms applicable to any Incremental Term Loans are inconsistent with the terms applicable to the Tranche A Term Loans (except, in each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, (vii) any Incremental Term Loans shall have the same Guarantees as, shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Loans (except to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent), (viii), in the case of Incremental Term Loans marketed as term “B” loans to institutional investors (“Incremental Term B Loans”), any Incremental Term Loan Amendment with respect to Incremental Term B Loans may (A) include such features as are, in the reasonable judgment of the Company and the Administrative Agent, customarily applicable to such type of loans (including but not limited to the ability to do refinancing amendments, extensions/loan modification offers and repurchases of such Incremental Term B Loans and limitations on the applicability of financial covenants to such Incremental Term B Loans) and (B) may provide for additional Collateral hereunder so long as such Collateral is shared on a pari passu basis with the Loans, (ix) any lenders holding Incremental Term B Loans may agree in advance pursuant to an Incremental Term Loan Amendment to certain modifications to the negative (but not financial maintenance) covenants set forth in Article VI hereof so long as such modifications shall not be applicable under this Agreement until such time as, and to the extent that, the Required Lenders (calculated without giving effect to the lenders holding such Incremental Term B Loans) have otherwise approved such modifications. Any Incremental Term Loan Commitments established pursuant to an Additional Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be more than five (5) maturity dates in respect of the Credit Extension AmendmentFacilities (including any Replacement Term Loans or Replacement Revolving Facilities).
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent, on each Incremental Facility Closing Date ; provided that (other than with respect to the Revolving Facilityincurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Company has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating Loan Party set forth in the relevant increase Loan Documents shall be true and correct in an amount determined by reference to the amount of each Type of Loan of such Borrower all material respects (andor, in the case of Eurocurrency any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) on and as of such date, (iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn), the Company shall be in pro forma compliance with the financial covenants set forth in Sections 5.09 and 5.10, (iv) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Benchmark Loans, no Event of Default under clause (a) or (f) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders Party set forth in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable Loan Documents shall be true and correct in all material respects (or, until in the expiration case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the then-current Interest Perioddate of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, (4) as of the date of the borrowing of such other rate as Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such Incremental Term Loans) shall be agreed upon between true and correct in all material respects (or, in the Parent Borrower case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and (5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Company shall be in pro forma compliance with the financial covenants set forth in Sections 5.09 and 5.10. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the relevant Lender)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, including, without limitation, amendments to address equity and cash patronage provisions reasonably requested by any farm credit bank and reasonably acceptable to the Administrative Agent and the Company.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment in respect of any Class, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender in respect of such Class and (B) the total Revolving Commitments of such Class shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the extent) necessary to reflect definition of the existence and terms term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any Lender holding such amendment may be effected in writing by the Administrative Agent Commitment, and the Parent Borrower and furnished Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to the other parties heretogive effect thereto.
(e) The Closing Date On the date of effectiveness of any Incremental Revolving Commitments of any Class, each Revolving Lender of any applicable Class shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Revolving Lender of any applicable Class, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be provided on necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Closing Date as Revolving Lenders of each applicable Class ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitments, subject Commitment.
(f) Subject to the terms and conditions set forth herein and in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.Increm
Appears in 2 contracts
Sources: Credit Agreement (Scotts Miracle-Gro Co), Credit Agreement (Scotts Miracle-Gro Co)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower After the Second Amendment Effective Date and any before the Extended Term Loan Maturity Date (with respect to Term Loans) and Extended Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to Administrative Agent, may request (i) the establishment of one or more Lenders additional tranches of term loans (including New Lenders) may from time to time agree that such Lenders shall makethe commitments thereto, obtain or increase the amount of their “Incremental Term Loans or Loan Commitments”) and/or (ii) increases in the Revolving Commitments (any such increased Revolving Commitments, the “Incremental Revolving Commitments” and any facility under which such and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (i) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (ii) after giving effect to each such request, the aggregate amount (the “Maximum Facilities Amount”) of outstanding Term Loans or Incremental and Revolving Commitments are made availableshall not exceed $1,500,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Facility”)Loan Commitments shall be effective, as applicablewhich shall be a date not less than 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 to provide all or a portion of the Incremental Loan Commitments; provided that (i) no Lender will be required to provide such Incremental Loan Commitment and (ii) any entity providing all or a portion of the Incremental Loan Commitments other than a Lender, by executing and delivering an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent an Additional Credit Extension Amendment specifying (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment such Incremental Loan Commitments, (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Cii) the Parent Borrower shall be in compliance, compliance with Section 7.1 as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition after giving effect to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
Loan Commitments, (Eiii) the weighted average life to maturity of any Incremental Term Facility Loan shall be no earlier greater than or equal to the then-remaining weighted average life to maturity of the Initial Extended Term Facility Loans, (except iv) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the case Increased Amount Date (giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of customary highOID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average year life to maturity maturity) paid to all of the Incremental Revolving Lenders in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments that is in effect on the Increased Amount Date, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments shall be increased so that the interest rate margin in respect of such Incremental Revolving Loan that is in effect on the Increased Amount Date (giving effect to any OID issued or upfront fees paid to all of the Incremental Lenders in connection therewith) is no greater than the Initial Term Facility);
sum of (Fx) the Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments that is in effect on the Increased Amount Date and (y) the upfront fees paid to all of the Lenders in respect of their Extended Revolving Commitments, (v) unless the final maturity date of such Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect is at least one year later than the final maturity date of the Collateral with Extended Term Loans, the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders interest rate margin in respect of such Incremental Term Facility elect lesser payments;Loans (giving effect to OID or upfront fees paid to all of the Incremental Term Lenders in connection therewith (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed the sum of (x) the Applicable Margin for the Extended Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Extended Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or upfront fees paid to all of the Incremental Term Lenders in connection therewith) is no greater than the sum of (x) the Applicable Margin for the Extended Term Loans and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, (vi) if the final maturity date of such Incremental Term Loans is at least one year later than the final maturity date of the Extended Term Loans, the interest rate margin in respect of such Incremental Term Loans (giving effect to OID or upfront fees paid to all of the Incremental Term Lenders in connection therewith (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 25 bps the sum of (x) the Applicable Margin for the Extended Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 25 bps the sum of such Applicable Margin and such fees, such Applicable Margin for the Extended Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or upfront fees paid to all of the Incremental Term Lenders in connection therewith) is no greater than the sum of (x) the Applicable Margin for the Extended Term Loans, (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans and (z) 25 bps, and (vii) the Incremental Loan Commitments shall be effected pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Term Loan Lender and the Administrative Agent pursuant to which such Incremental Term Loan Lender agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement.
(Hc) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving Loans in respect thereof outstanding on such Increased Amount Date as shall be pursuant necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the terms hereof otherwise applicable to the Revolving Facility and addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments under this Agreement after giving effect shall be identical to such Additional Credit Extension Amendment;the Revolving Loans and the Revolving Commitments.
(Id) On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.23.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Avis Budget Group, Inc.), Credit Agreement (Avis Budget Group, Inc.)
Incremental Facilities. (a) The Parent At any time after the Closing Date, the Borrower and/or any Additional Borrower and any may by written notice to the Administrative Agent elect to request (i) prior to the Latest Revolving Credit Maturity Date, one or more Lenders (including New Lenders) may from time increases to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Credit Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan facilities, which may take the form of an increase to any then-existing term loan facility (an “Incremental Term Loan Facility”; the commitments in respect thereof, the “Incremental Term Loan Commitments” and, together with the Incremental Revolving Credit Commitments, the “Incremental Loan Commitments”). Each Incremental Revolving Credit Commitment and any facility under Incremental Term Loan Commitment shall be in an aggregate principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such Incremental Loan Commitments obtained on or prior to such date). Each such notice shall (I) specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five Business Days after the date on which such Incremental Term notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (B) the identity of each Lender or other Person that is a Person that would be permitted to be an assignee of the Loans or Incremental Revolving Commitments are made availablepursuant to Section 13.6(b) (each, an “Incremental FacilityRevolving Credit Lender” or “Incremental Term Loan Lender,” as applicable, and together, the “Incremental Lenders”)) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, by executing be allocated, and delivering to (II) may also provide the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount proposed amounts of such increase and allocations; provided that (x) any Lender approached to provide all or a portion of the Facility Incremental Revolving Credit Commitments or Facilities involvedIncremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment (ii) the applicable it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Facility Closing DateRevolving Credit Commitment or Incremental Term Loan Commitment), (iii) the applicable Borrower(s) and (ivy) in the case of Incremental Term LoansRevolving Credit Commitments, the Administrative Agent and the Letter of Credit Issuer shall have consented (wsuch consent not to be unreasonably withheld or delayed) the applicable to such Person’s providing such Incremental Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments to such Person. Such Incremental Revolving Credit Commitments or Incremental Term Maturity Loan Commitments shall become effective as of such Increased Amount Date, ; provided that (x1) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing shall exist on such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and Increased Amount Date after giving effect to any Additional such Incremental Revolving Credit Extension Amendment Commitments or Incremental Term Loan Commitments, as applicable, (including 2) after giving effect to the making of any Incremental Term Loans or effectiveness of Incremental Revolving Commitments pursuant thereto)Credit Commitments, no Default all representations and warranties made by any Credit Party contained herein or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional other Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event Documents shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all 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, except in which case such representations and solely warranties shall have been true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects) as of such earlier date), (3) the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the extent Borrower, the Incremental Revolving Credit Lenders or Incremental Term Loan Lenders, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and (4) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Incremental Lenders providing such Incremental Loan Commitments and required by the lenders providing applicable Joinder Agreement in connection with any such transaction. Notwithstanding anything to the contrary in this Section 2.14 or any other provision of any other Credit Documents, if the proceeds of any Loans made pursuant to any Incremental Loan Commitments are intended to be applied to finance a Permitted Acquisition or any other acquisition or Investment permitted under the Credit Documents, the calculation of the Maximum Incremental Facilities Amount and the determination as to the Borrower’s compliance with clauses (1) and (2) of the second proviso of this Section 2.14(a), shall be subject, in each case, to the Borrower’s right to make an LCT Election with respect to any Limited Condition Transaction, in which case, Section 1.12(b) shall apply; provided that (x) there shall be no Event of Default under Sections 11.1 and 11.5 (with respect to the Borrower) on the date of Borrowing of such Incremental Facility;Loans, and (y) the conditions applicable to the availability of Loans pursuant to such Incremental Loan Commitments shall include customary “limited conditionality” or “certain funds” conditionality provisions.
(Eb) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected through an increase to any existing Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (a) each of the relevant Revolving Credit Lenders shall assign to each of the Incremental Revolving Credit Lenders, and each of the Incremental Revolving Credit Lenders shall purchase from each of the relevant Revolving Credit Lenders, at the principal amount 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, such Revolving Credit Loans will be held by such existing Revolving Credit Lenders and Incremental Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Credit Lender shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum assignment, borrowing and prepayment requirements in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(c) Any Incremental Term Loans effected through the establishment of one or more new Term Loans made on an Increased Amount Date shall be designated a separate Class of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class (it being understood that any Incremental Term Loan Facility may provide for delayed draw term loans to be made at a later date), and (ii) each Incremental Term Loan Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, Incremental Term Loans may, subject to clause (e) below, have identical terms to the Initial Term Loans (or any other then-existing Class of Term Loans) and be treated as the same Class as the Initial Term Loans (or any other then-existing Class of Term Loans).
(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 (y) the weighted average life Class of Incremental Revolving Credit Commitments and the Incremental Revolving Credit Lenders of such Class or the Class of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Class, as applicable, and (z) in the case of each notice to maturity 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 any Incremental Term Facility Loans and Incremental Term Loan Commitments or any Incremental Revolving Credit Commitments, as the case may be, of any Class shall be as agreed between the Borrower and the Incremental Term Loan Lenders or Incremental Revolving Credit Lenders, as applicable, providing such Incremental Term Loans and Incremental Term Loan Commitments or such Incremental Revolving Credit Commitments; provided that to the extent such terms and provisions are not consistent with the terms and provisions of the then existing Term Loans or Revolving Credit Commitments, as applicable (except as permitted by clauses (ii), (iii), (iv), and (v) below), such terms and provisions shall not be more restrictive than the terms and provisions applicable to such existing Term Loans or Revolving Credit Commitments, as applicable, unless (x) the Lenders under such existing Term Loans or Revolving Credit Commitments, as applicable, receive the benefit of such more restrictive terms, (y) any such provisions are applicable only after the Latest Term Loan Maturity Date or Latest Revolving Credit Maturity Date, as applicable, at such time or (z) such provisions are otherwise reasonably satisfactory to the Administrative Agent (which additional terms shall, notwithstanding anything to the contrary in Section 13.1, apply automatically to this agreement without the consent of any Lender, the Letter of Credit Issuer or, in the case of clause (x) or (y) of this paragraph (e), the Administrative Agent). In any event:
(i) any Incremental Revolving Credit Commitments shall have the same terms and ranking as the Revolving Credit Commitments prior to the Increased Amount Date (as such terms may be modified in accordance with the immediately preceding proviso);
(ii) the Weighted Average Life to Maturity of all Incremental Term Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (except by virtue of amortization or prepayment of the Initial Term Loans prior to the time of such incurrence);
(iii) the Maturity Date of any Class of the Incremental Term Loans shall be no earlier than the weighted average life to maturity of the Initial Term Facility Loans;
(except iv) the Incremental Term Loans may share ratably in the case right of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than prepayment with the Initial Term FacilityLoans pursuant to Section 5.1 or 5.2 or otherwise; provided that the Incremental Term Loans may, as the Borrower and the Incremental Term Loan Lenders may determine in their sole discretion, be afforded lesser payments;
(v) the Effective Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the Effective Yield with respect to such Incremental Term Loans shall not be greater than the Effective Yield with respect to the then existing Initial Term Loans, plus 50 basis points per annum unless the interest rate with respect to the Initial Term Loans is increased so as to cause the then applicable Effective Yield on the Initial Term Loans to equal the Effective Yield then applicable to the Incremental Term Loans minus 50 basis points (this proviso to this clause (v), the “MFN Protection”);
(Fvi) all (x) the liens securing the Incremental Term Loans will rank pari passu with the liens securing the Initial Term Loans and any Revolving (y) the Incremental Term Loans made in respect of Incremental Revolving Commitments shall have the same guarantees as, and will rank pari passu in right of payment and right of security in respect of with, the Collateral with the existing Initial Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;Loans.
(Gf) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Each Joinder Agreement may, all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agentany other Lenders, (x) each increase effected pursuant effect such amendments to this paragraph shall be in a minimum amount Agreement (including the imposition of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, “call protection” on existing Term Loan tranches in the case of any Incremental Revolving Loans, the Issuing Lenders increase thereto) and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional other Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (andDocuments as may be necessary, in the case reasonable opinion of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower to effect the provision of this Section 2.14, and furnished this Section 2.14 shall supersede any provisions of Sections 5, 13.8(b) or 13.1 to the other parties heretocontrary.
(eg) The Closing Date Incremental Term Loans, the Incremental Term Loan Commitments and the Incremental Revolving Credit Commitments extended or established pursuant to this Section 2.14 shall constitute Loans and Commitments under, and shall be provided on entitled to all the Closing Date as benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantee and security interests created by the Security Documents. The Credit Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien granted by the Security Documents continues to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Incremental Term Loans or any such Incremental Term Loan Commitments and Incremental Revolving Credit Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Del Frisco's Restaurant Group, Inc.), Credit Agreement (Del Frisco's Restaurant Group, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall make, obtain one or increase more increases in the amount of their Incremental Term Loans or the Revolving Commitments of any Class (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Commitment Increase”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term LoansCommitments, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
provided that (A) the aggregate principal amount (or committed amount, if applicable) of all the Incremental Revolving Commitment Increases established hereunder shall not exceed $25,000,000 and (B) the aggregate amount of all the Incremental Term Loans Commitments and all Incremental Revolving Commitments, together with Commitment Increases established hereunder shall not exceed the difference between (1) $100,000,000 and (2) the aggregate principal amount of any Permitted Secured Indebtedness incurred after the Effective Date. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Equivalent DebtRevolving Commitment Increases or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not exceed less than 10 Business Days (or such shorter period as may be agreed to by the Incremental Cap;
Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) with respect any Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, Commitment Increase or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichCommitment may elect or decline, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects , to provide Commitments under an such Incremental Facility Revolving Commitment Increase or Incremental Term Commitments, (iy) to the extent such consent would Borrower shall not be required for to approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the Borrower proposes to become a Lender under any Incremental Term Commitment or Incremental Revolving Commitment Increase, if such Person is not then a Lender, must be an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall Eligible Assignee and must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansCommitment Increase, the each Issuing Lenders Bank and the Swingline Lender Lender).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that the interest margin or commitment fees applicable to any Incremental Revolving Commitment Increase may exceed the interest margin or fees payable with respect to the Revolving Loans and/or Revolving Commitments pursuant to the terms of this Agreement, as amended through the date of such calculation, in which case the Applicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case as in effect for the other Revolving Loans and Revolving Commitments, shall be automatically increased to eliminate such excess. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be set forth in the applicable Incremental Facility Agreement and may be different to those of the Term Commitments and the Term Loans (provided that, except with respect to matters contemplated by clauses (i), (ii) and (iii) below or customary for a “Term B” institutional loan tranche, any differences shall become a Lender under this Agreement be reasonably satisfactory to the Administrative Agent); 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 the Initial Terms Loans, (ii) no Incremental Term Loan Maturity Date shall be earlier than the Initial Term Maturity Date and (iii) any Incremental Term Loan shall rank pari passu or junior in right of payment and of security with the Initial Term Loans and shall be secured only by the Collateral securing the Obligations. Any Incremental Term Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) Unless otherwise agreed The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Term Commitments or Incremental Revolving Commitment Increase, as the case may be, and the Administrative Agent; provided that no Incremental Term Commitments or Incremental Revolving Commitment Increases shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments or Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) 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 Revolving Commitment Increase or Incremental Term Loan Commitments and the making of Loans pursuant thereto (and assuming that the amount of any Incremental Revolving Commitment Increase is fully drawn), the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13, recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower for which financial statements shall have been delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the Pro Forma Financial Statements) and (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Term Commitments or Incremental Revolving Commitment Increase and the related transactions under this Section. 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, on each to give effect to the provisions of this Section, provided that to the extent that any term of any such amendment could not be approved as an amendment of this Agreement by the Lenders providing such Incremental Term Commitments voting as a single Class without the approval of any other Lender, such amendment will be subject to the approval of the requisite Lenders required under this Agreement.
(d) Upon the effectiveness of an Incremental Term Commitment or Incremental Revolving Commitment Increase of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment Increase, (A) if the applicable Lender does not already have a Revolving Commitment, such Incremental Revolving Commitment Increase shall constitute the Revolving Commitment of such Lender as provided in the Incremental Facility Closing Date Agreement applicable to such Incremental Revolving Commitment Increase, (B) if the applicable Lender already has a Revolving Commitment, the Revolving Commitment of such Lender shall be increased as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase and (C) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment Increase, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment Increase, the Revolving Exposure of the Revolving Lender making such Incremental Revolving Commitment Increase, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitment Increase, each Revolving Lender shall assign to each Revolving Lender making such Incremental Revolving Commitment Increase, and each such Revolving Lender making such Incremental Revolving Commitment Increase shall purchase from each Revolving Lender, at the principal amount thereof (together with respect accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving FacilityCommitment Increase.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the amount effectiveness of any Incremental Term Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitment Increase, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Costar Group Inc), Credit Agreement (Costar Group Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Closing Date, the Borrowers may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”, together with the Incremental Revolving Commitments, the “Incremental Commitments”), in an aggregate amount not to exceed $750,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Revolving Borrowers or the Term Loan Borrowers, as applicable, propose that such Incremental Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Revolving Borrowers or the Term Loan Borrowers, as applicable, to arrange a syndicate of Lenders willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and (z) any Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Revolving Borrowers or the Term Loan Borrowers, as applicable, and the Administrative Agent, and, if an Incremental Revolving Commitment, the Issuing Bank and the Swingline Lender (each of which approvals shall not be unreasonably withheld), unless such Incremental Revolving Loan Lender or Incremental Term Loan Lender is an existing Lender. The terms and provisions of any Incremental Revolving Commitments shall be identical to the existing Revolving Commitments. The terms and provisions of any Incremental Term Loan Commitments and any facility under which Incremental Term Loans shall (a) provide that the maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the Term Loan Maturity Date and shall not have any scheduled amortization payments, (b) share ratably in any prepayments of the existing Term Loan Facility, unless the Term Loan Borrowers and the Incremental Term Loan Lenders in respect of such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing elect lesser payments and delivering (c) otherwise be identical to the Administrative Agent an Additional Credit Extension Amendment specifying existing Term Loans. The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (yii) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower recent month for which financial statements are available;
have been delivered pursuant to Section 5.01, the Borrowers would have been in compliance with the Financial Covenants (D) in no event shall it be a condition after giving effect to any increase to the effectiveness ofmaximum Total Leverage Ratio pursuant to Section 6.06(a) during a Total Leverage Ratio Increase Period, if applicable) that are applicable at such time; (y) the representations and warranties made or Borrowing under, any Incremental Facility that any representation or warranty of deemed made by the Borrowers in any Loan Party Document shall be true and correct in all material respects, respects on the effective date of such Incremental Commitments except and solely to the extent required by that such representations and warranties expressly relate solely 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) and except for changes in factual circumstances specifically and expressly permitted under the lenders providing such Incremental Facility;
Loan Documents; and (Ez) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrowers to authorize such Incremental Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Subsidiary Guarantor authorizing the Subsidiary Guaranty by such Subsidiary Guarantor of such Incremental Commitments; provided that and (ii) a customary opinion of counsel to the Borrowers and the Subsidiary Guarantors (which may be in substantially the same form as delivered on the Closing Date and may be delivered by internal counsel of the Borrowers), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Revolving Borrowers or the Term Loan Borrowers, as applicable, payable to any new Lender, and replacement notes executed by the Revolving Borrowers or the Term Loan Borrowers, as applicable, payable to any existing Lenders. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans 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 will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to its Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender shall share ratably in any mandatory prepayments of make a Loan to the applicable Term Facility unless Loan Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Parent Borrower Incremental Term Loan Commitment and the lenders Incremental Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect of such Incremental Term Facility elect lesser payments;
thereof (Hy) any the Incremental Revolving Commitments and the Incremental Revolving Loans Loan Lenders or the Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable, and (z) in respect thereof 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 upfront fees payable to the Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders shall be determined by the Revolving Borrowers or the Term Loan Borrowers, as applicable, and the applicable Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders. The Incremental Commitments shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by the Revolving Borrowers or the Term Loan Borrowers, as applicable, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.04.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Cooper Companies Inc)
Incremental Facilities. The Borrower may by written notice to the Administrative Agent elect to request (aA) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time prior to time agree that such Lenders shall makethe Revolving Commitment Termination Date, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or (B) prior to the Tranche B Term Loan Maturity Date, the establishment of one or more new term loan commitments (the “Incremental Term Loans Loan Commitments”), by an amount not in excess of $75,000,000 in the aggregate and not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $75,000,000 and all such Incremental Revolving Commitments are made availableand Incremental Term Loan Commitments obtained 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 Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental FacilityRevolving Loan Lender” or “Incremental Term Loan Lender”), as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, by executing be allocated and delivering the amounts of such allocations; provided that Barclays Bank may elect or decline to arrange such Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the Administrative Agent Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Additional Credit Extension Amendment specifying Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) the ratio of (i) Consolidated Total Secured Debt after giving effect to such Incremental Revolving Commitment or the amount of such increase and the Facility or Facilities involvedIncremental Term Loan Commitment, as applicable, to (ii) pro forma Consolidated Adjusted EBITDA for the applicable Incremental Facility Closing Date, latest twelve-month period for which financial statements are then available shall be less than or equal to 3.25:1.00; (iii2) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Incremental Revolving Commitments or (y) otherwiseIncremental Term Loan Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (3) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Series of Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 3.02 shall result therefrom;
be satisfied; (C4) the Parent Borrower Holdings shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis compliance (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, calculated in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made accordance with the proceeds thereof)), definition of Consolidated Adjusted EBITDA) with each of the financial covenants set forth in Section 7.1, recomputed 6.07 as of the last day of the most recently ended fiscal quarter Fiscal Quarter, after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the Parent relevant determination period but prior to or simultaneous with the borrowing of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (5) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (6) the Borrower for which financial statements are available;
(Dshall make any payments required pursuant to Section 2.18(c) in no event shall it be a condition to connection with the effectiveness of, Incremental Revolving Commitments or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility Loan Commitments, as applicable; (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F7) all Incremental Term Loans other fees and any Revolving Loans made expenses owing in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; provided that (8) such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall share pari passu in the Guarantees and Collateral; and (9) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans 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 will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender of any Series shall share ratably make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any mandatory prepayments Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the applicable Term Facility unless the Parent Borrower Borrower’s notice of each Increased Amount Date and the lenders in respect of such Incremental Term Facility elect lesser payments;
thereof (Hy) any the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental 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. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term Loans and as set forth in the Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable identical to the Revolving Facility Loans and such Incremental Revolving Commitments Loan will be documented solely as an increase to the Revolving Commitments, without any change in terms other than any change that is more favorable to the Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall become be empowered to, on behalf of all the Revolving Commitments under this Agreement after giving Lenders, execute an amendment to the definitive documentation relating to the Revolving Loans in order to give effect to such Additional Credit Extension Amendment;
(I) without a change more favorable to the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have Revolving Lenders). In any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility 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 existing Term Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of the existing Term Loans, and (iii) if the initial “yield” (for purposes of this Section 2.24, the “yield” with respect to any Loan shall be calculated as the sum of the Eurodollar Loan margin on the relevant Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable credit facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to the extent Incremental Term Loans exceeds the “rate” (which for purposes of this Section 2.24 shall be calculated as the Applicable Margin) then in effect with respect to the existing Term Loans by more than 0.25%, then the Applicable Margin relating to the existing Term Loans and the existing Revolving Loans shall be adjusted so that the yield relating to such consent would be required for an assignment of such Incremental Term Loans does not exceed the rate applicable to the existing Term Loans or Commitments pursuant to Section 10.6 (the existing Revolving Loans, as applicable, by more than 0.25%, and if the lowest permissible Adjusted Eurodollar Rate is greater than 2.00% or the lowest permissible Base Rate is greater than 3.00%, for such consent not to be unreasonably withheldIncremental Term Loans, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent anddifference between such “floor” and 2.00%, in the case of any Incremental Revolving LoansTerm Loans with the Adjusted Eurodollar Rate, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (andor 3.00%, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced therebywith Base Rate, shall be used in calculating “yield” for purposes of clause (iii) above. Any Each Joinder Agreement may, without the consent of any other Lenders, effect such amendment amendments to this Agreement and the other Credit Documents as may be effected necessary or appropriate, in writing by the opinion of the Administrative Agent and to effect the Parent Borrower and furnished to the other parties heretoprovisions of this Section 2.24.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (RadNet, Inc.), Credit and Guaranty Agreement (RadNet, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments, provided that such Lenders shall make, obtain or increase the aggregate amount of their all the Incremental Term Loans or Revolving Commitments established hereunder shall not exceed (any A) $50,000,000 and (B) such increased greater amount that will not result in the First Lien Secured Leverage Ratio, determined on a Pro Forma Basis giving effect to such Incremental Facility (assuming that all Revolving Commitments, “including any Incremental Revolving Commitments” , have been fully funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the First Lien Secured Leverage Ratio the cash proceeds of the Borrowings under any facility under which such Incremental Revolving Facility or Incremental Term Loans or Facility, but not excluding the use of such proceeds) exceeding 3.75 to 1.00. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments are made available, an “or the Incremental Facility”)Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for such Borrower proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans such Person is not then a Lender, must be an Eligible Assignee and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall must be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect reasonably acceptable to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment with respect to proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender).
(b) The terms of any Incremental Revolving Commitments that such commitments are fully drawn) without the netting and Revolving Loans and other extensions of proceeds thereof and any Permitted Acquisition credit to be made with the proceeds thereof))thereunder shall be, with the financial covenants except as otherwise set forth in Section 7.1herein, recomputed as identical to those of the last day Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that (i) the most recently ended fiscal quarter maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Parent Borrower for which financial statements are available;
Revolving Maturity Date, (Dii) in there shall be no event shall it be a condition mandatory reduction of any Incremental Revolving Commitments prior to the effectiveness of, or Borrowing under, Revolving Maturity Date and (iii) any upfront fees applicable to any Incremental Revolving Facility that any representation or warranty of any Loan Party and Incremental Revolving Commitments and Incremental Revolving Loans shall be true and correct in all material respects, except and solely to the extent required as determined by the lenders Borrower and the Incremental Revolving Lenders providing such Incremental Facility;
. The terms of any Incremental Term Facility 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 the Term Commitments and the Term Loans; provided that (Ei) if the all-in yield as determined by the Administrative Agent in accordance with customary market practice (whether in the form of interest rate margins, LIBOR floor, ABR floor or original issue discount or upfront fees payable to all Lenders providing such Incremental Term Loans (with such upfront or similar fees or original issue discount being equated to interest based on an assumed four-year life to maturity) but not structuring, arrangement or similar fees paid to the arrangers for such Indebtedness) relating to any Incremental Term Loans exceeds by more than 0.50% per annum the all-in yield as determined by the Administrative Agent in accordance with customary market practice (calculated in the same manner as above) relating to the Term Loans, then the Applicable Rate then in effect for the Term Loans shall automatically be adjusted such that the all-in yield relating to the Term Loans is equal to the all-in yield relating to the Incremental Term Loans minus 0.50%, (ii) the upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (iii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Terms Loans and (iv) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Facility);
(F) all Maturity Date. Any Incremental Term Facilities established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans and any Revolving Loans made in respect thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Term Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall rank pari passu in right of payment and right of security in respect of be secured by the Collateral on a pan passu basis with the Term Loans other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
(G) except with respect effected pursuant to pricing one or more Incremental Facility Agreements executed and fees or as otherwise set forth in this Section 2.25(a)delivered by Holdings, all terms of any the Borrower, each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to Incremental Facilities and the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Incremental Commitments and the making of Loans and issuance of Letters of Credit Extension Amendment;
thereunder to be made on such date (Iprovided that this clause (i) shall not apply to the extent agreed by the Incremental Lenders if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (ii) 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, 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 in all material respects on and as of such prior date (provided that, to the extent agreed by the Incremental Lenders, the representations and warranties referred to in this clause (ii) may be limited in a manner customary for limited conditionality acquisition financings if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (iii) after giving effect to such Incremental Commitments and the making of Loans pursuant thereto (and based on the assumption that the full amount of the Aggregate Revolving Commitment, including any Incremental Revolving Commitments, has been funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the covenant calculations the cash proceeds of the Borrowing under any such Incremental Revolving Facility or Incremental Term Facility but not excluding the use of such proceeds), Holdings and the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (v) Holdings and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction, including a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above. 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, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the Aggregate Revolving Commitment shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitments, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(dh) Notwithstanding anything This Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretocontrary.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableoccasions, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, request (i) the amount establishment of such increase and the Facility or Facilities involved, Incremental Revolving Commitments and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, Commitments; provided that (wA) the applicable aggregate amount of all the Incremental Term Maturity Date, Commitments established hereunder shall not exceed US$600,000,000 and (B) no Incremental Commitments may be established until after the earlier of (x) the amortization schedule for such Incremental Delayed Draw Term Loans Funding Date and (y) the Applicable Margin for Delayed Draw Term Commitment Termination Date. Each such notice shall specify (1) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loans; providedCommitments, that:
as applicable, shall be effective, which shall be a date not less than 10 Business Days (Aor 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 and (2) the aggregate principal amount (of the Incremental Revolving Commitments or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtas applicable, shall not exceed the Incremental Cap;
being requested (B) it being agreed that (x) with respect any Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assumingCommitment or Incremental Term Commitment may elect or decline, in the case of any Additional Credit Extension Amendment with respect its sole discretion, to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and provide such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 Commitment or Incremental Term Commitment and (y) no more than five Incremental Facility Closing Dates may be selected by any Person that the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation Company proposes to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under become an Incremental Facility (i) to the extent Lender, if such consent would Person is not then a Lender, must be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall Eligible Assignee and must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing Lenders Banks or the Swingline Lender, as the case may be, would be required for an assignment to such Person pursuant to Section 10.04).
(b) The terms and conditions of any Incremental Revolving Commitment and the Swingline Lender Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and conditions of any Incremental Term Loans shall be such as the Company and the applicable Incremental Term Lenders shall agree upon; provided that (i) the Incremental Term Loans shall be extensions of credit to the Company that are guaranteed only by the Subsidiary Guarantors, (ii) the Incremental Term Loans shall become a Lender under rank pari passu in right of payment with the other Loans and the other Loan Document Obligations and shall not be secured by any Liens on any assets of the Company or its Subsidiaries, unless the Loan Document Obligations are equally and ratably secured pursuant to security documentation reasonably satisfactory to the Administrative Agent, (iii) the Incremental Facility Agreement with respect thereto shall not contain any affirmative, negative or financial covenant applicable to the Company or the Subsidiaries or any event of default that benefits the Incremental Term Lenders (but not the other Lenders), in each case, except if this Agreement is amended to include such affirmative, negative or financial covenant or event of default for the benefit of all Lenders and (iv) if any Class of Term Loans shall be outstanding immediately after giving effect to the incurrence of such Incremental Term Loans and the application of the proceeds thereof, (A) the Incremental Term Maturity Date with respect to such Incremental Term Loans shall be no earlier than the latest Maturity Date of any such Class of Term Loans, (B) the weighted average life to maturity of such Incremental Term Loans shall be no shorter than the longest remaining weighted average life to maturity of any such Class of Term Loans and (C) such Incremental Term Loans shall not be subject to any mandatory prepayment provisions. Any Incremental Term Commitments established pursuant to an Additional Credit Extension Amendmenta single Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate “Class” of Commitments or Loans for all purposes of this Agreement; provided that any Incremental Term Loans that have identical terms as any other Class of “term” Loans then outstanding (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes) may, at the election of the Company, be treated as a single Class with such outstanding “term” Loans.
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent (with the Administrative Agent hereby agreeing that its consent thereto shall not be unreasonably withheld, conditioned or delayed); provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of any Loans thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in (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 of effectiveness, except in the case of any such representation or warranty that expressly relates to a prior date, in which case such representation or warranty shall be so true and correct on and as of such prior date, and (iii) the Company shall have delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall have been reasonably be requested by the Administrative AgentAgent in connection with any such transaction. Each Incremental Facility Agreement may, on 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 and the Company, to give effect to the provisions of this Section, including any amendments necessary or appropriate to treat the Incremental Term Commitments and the Incremental Term Loans as a new Class of Commitments and Loans hereunder (including for purposes of voting).
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as provided herein. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Applicable Percentages of all the Revolving Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Revolving Commitments shall be deemed to be repaid, (ii) each Incremental Facility Closing Date with respect Revolving Lender that shall have had a Revolving Commitment prior to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased effectiveness of such Incremental Revolving Commitments from each Lender participating shall pay to the Administrative Agent in same day funds and in the relevant increase in applicable currency an amount determined equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by reference to (2) the amount of each Type Resulting Revolving Borrowing (as hereinafter defined) and (B) the product of Loan (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Borrower Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Existing Revolving Borrowing, (iii) each Incremental Revolving Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to Administrative Agent in same day funds and in the applicable currency an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Resulting Revolving Borrowing, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Existing Revolving Borrowing, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Resulting Revolving Borrowing, (v) after the effectiveness of such Incremental Revolving Commitments, the applicable Borrowers shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in amounts and currencies equal to the amount and currencies of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company shall, on behalf of all applicable Borrowers, deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) and (vii) the applicable Borrowers shall pay each Revolving Lender any and all accrued but unpaid interest on its Revolving Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrowers pursuant to the provisions of Section 2.13 if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Class shall make a Loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in paragraph (a) of this Section and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to of the conditions set forth in Section 5 to Applicable Percentages of the same extent applicable to the initial Revolving Commitments and without any further amendment to this AgreementLenders after giving effect thereto.
Appears in 2 contracts
Sources: Credit Agreement (Westinghouse Air Brake Technologies Corp), Credit Agreement (Westinghouse Air Brake Technologies Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any on behalf of the Borrowers may by written notice to Administrative Agent elect to request the establishment of one or more Lenders (including increases in New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Credit Commitments (any such increased Revolving Commitments, the “Incremental Revolving Credit Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying aggregate amount not in excess of (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, when taken together with the aggregate principal amount (the “Excess Amount”) of any Permitted New Loan Commitments (as defined in the CF Agreement as in effect on the Original Closing Date) under the CF Facility on the date such Incremental Equivalent Debt, shall Revolving Credit Commitments become effective) $1,500,000,000 in the aggregate and not exceed the Incremental Cap;
less than $100,000,000 individually (B) or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between $1,500,000,000 and all such Incremental Revolving Credit Commitments (when taken together with respect the Excess Amount on the date such Incremental Revolving Credit Commitments become effective) obtained on or prior to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Parent Borrower on behalf of the Borrowers proposes that the Incremental 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) to provide all or a portion of the Incremental Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Incremental Revolving Credit Commitment. In each case, such Incremental Revolving Credit Commitments shall become effective, as a “Limited Conditionality Acquisition”, of the applicable Increased Amount Date; provided that (i) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition or (y) otherwiseIncremental Revolving Credit Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (ii) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 7 shall result therefrom;
be satisfied; (Ciii) the Parent Borrower and its Restricted Subsidiaries shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made Pro Forma Compliance with the proceeds thereof)), with the financial covenants covenant set forth in Section 7.1, recomputed 10.9 of the CF Agreement as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Incremental Revolving Credit Extension Amendment;Commitments and any Investment to be consummated in connection therewith; (iv) the Incremental Revolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Sections 5.4(d) and (e); (v) the Parent Borrower on behalf of the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the Incremental Revolving Credit Commitments, as applicable; and (vi) 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. The Parent Borrower on behalf of the Borrowers shall give the Administrative Agent prompt written notice of any increase in the aggregate amount committed in respect of the CF Facility.
(Ib) On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with New Revolving Credit Commitments shall assign to each Lender with a Incremental Revolving Credit Commitment (each, a “Incremental Revolving Loan Lender”) and each of the Incremental Revolving Loan Lenders shall purchase from each of the Lenders with New Revolving Credit Commitments, at the principal amount thereof (together with accrued interest), such interests in the New 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, such New Revolving Credit Loans will be held by existing New Revolving Lenders and Incremental Revolving Loan Lenders ratably in accordance with their New Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the New Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment shall be deemed for all purposes a New Revolving Credit Commitment and each Loan made thereunder (a “Incremental Revolving Loan”) shall be deemed, for all purposes, a New Revolving Credit Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Loan Commitment and all matters relating thereto.
(c) [Reserved].
(d) The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Credit Commitments shall be identical to the New Revolving Credit Loans and the 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, (x) each increase effected pursuant to effect the provision of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.14.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Hca Inc/Tn), Credit Agreement (Hca Inc/Tn)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may request, from time to time agree time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such Lenders shall make, obtain or other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the amount of their Incremental Term Loans or “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Credit Commitments” and ”) and/or (ii) the establishment of one or more new term loan commitments (any facility under which such increase, the “Incremental Term Loans Loan Commitments”), by an amount not in excess of $600,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,200,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Revolving Commitments are made available, an “Incremental Facility”)Term Loan Commitments, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedshall be effective, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term LoansLoan Commitments, as applicable, be allocated and the amount of such allocations; providedprovided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, that:
(A) and any Lender approached to provide all or a portion of the aggregate principal amount (Incremental Revolving Credit Commitments or committed amountIncremental Term Loan Commitments may elect or decline, if applicable) of all in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, made on an Increased Amount Date shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance be designated a Permitted Acquisition or a similar permitted Investment designated separate series identified by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event year of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
Loans (H) any or month and year if there are multiple Incremental Revolving Commitments and the Revolving Term Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders maturing in the same Eurocurrency Tranche or Term Benchmark Trancheyear) (each, as applicable (or, until the expiration a “Series”) of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to for all purposes of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to each of the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall be true and correct in all respects) (x) with respect to Incremental Term Loans being incurred to finance a Limited Conditionality Acquisition, except as of the date of execution and solely to delivery of the extent required applicable acquisition, merger or similar agreement governing such acquisition (provided that, if agreed by the lenders Lenders providing such Incremental FacilityTerm Loans, the only representations and warranties that shall be required to be true and correct shall be those as are customarily required to be so true and correct in an acquisition subject to limited conditionality (which representations and warranties shall be required to be true and correct in all material respects as of the applicable Incremental Facility Activation Date, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be required to be so true and correct in all material respects as of such earlier date)) or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments (or Revolving Loans in respect thereof) pursuant thereto), in each case, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date;
(E) the weighted average life to maturity of any Incremental Term Facility (other than the Specified Incremental Loans) shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Amendment and Restatement Effective Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Type or Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Type or Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions after the First Refinancing Facility Agreement Effective Date, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments, provided that such Lenders shall make, obtain or increase the aggregate amount of their all the Incremental Term Loans or Revolving Commitments established hereunder shall not exceed (any A) $50,000,000 and (B) such increased greater amount that will not result in the First Lien Secured Leverage Ratio, determined on a Pro Forma Basis giving effect to such Incremental Facility (assuming that all Revolving Commitments, “including any Incremental Revolving Commitments” , have been fully funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the First Lien Secured Leverage Ratio the cash proceeds of the Borrowings under any facility under which such Incremental Revolving Facility or Incremental Term Loans or Facility, but not excluding the use of such proceeds) exceeding 3.75 to 1.00. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments are made available, an “or the Incremental Facility”)Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for such Borrower proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans such Person is not then a Lender, must be an Eligible Assignee and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall must be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect reasonably acceptable to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment with respect to proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender).
(b) The terms of any Incremental Revolving Commitments that such commitments are fully drawn) without the netting and Revolving Loans and other extensions of proceeds thereof and any Permitted Acquisition credit to be made with the proceeds thereof))thereunder shall be, with the financial covenants except as otherwise set forth in Section 7.1herein, recomputed as identical to those of the last day Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that (i) the most recently ended fiscal quarter maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Parent Borrower for which financial statements are available;
Revolving Maturity Date, (Dii) in there shall be no event shall it be a condition mandatory reduction of any Incremental Revolving Commitments prior to the effectiveness of, or Borrowing under, Revolving Maturity Date and (iii) any upfront fees applicable to any Incremental Revolving Facility that any representation or warranty of any Loan Party and Incremental Revolving Commitments and Incremental Revolving Loans shall be true and correct in all material respects, except and solely to the extent required as determined by the lenders Borrower and the Incremental Revolving Lenders providing such Incremental Facility;
. The terms of any Incremental Term Facility 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 the Term Commitments and the Term Loans; provided that (Ei) if the all-in yield as determined by the Administrative Agent in accordance with customary market practice (whether in the form of interest rate margins, LIBOR floor, ABR floor or original issue discount or upfront fees payable to all Lenders providing such Incremental Term Loans (with such upfront or similar fees or original issue discount being equated to interest based on an assumed four-year life to maturity) but not structuring, arrangement or similar fees paid to the arrangers for such Indebtedness) relating to any Incremental Term Loans exceeds by more than 0.50% per annum the all-in yield as determined by the Administrative Agent in accordance with customary market practice (calculated in the same manner as above) relating to the Term Loans, then the Applicable Rate then in effect for the Term Loans shall automatically be adjusted such that the all-in yield relating to the Term Loans is equal to the all-in yield relating to the Incremental Term Loans minus 0.50%, (ii) the upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (iii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Terms Loans and (iv) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Facility);
(F) all Maturity Date. Any Incremental Term Facilities established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans and any Revolving Loans made in respect thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Term Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall rank be secured by the Collateral on a pari passu in right of payment and right of security in respect of the Collateral basis with the Term Loans other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
(G) except with respect effected pursuant to pricing one or more Incremental Facility Agreements executed and fees or as otherwise set forth in this Section 2.25(a)delivered by Holdings, all terms of any the Borrower, each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to Incremental Facilities and the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Incremental Commitments and the making of Loans and issuance of Letters of Credit Extension Amendment;
thereunder to be made on such date (Iprovided that this clause (i) shall not apply to the extent agreed by the Incremental Lenders if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (ii) 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, 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 in all material respects on and as of such prior date (provided that, to the extent agreed by the Incremental Lenders, the representations and warranties referred to in this clause (ii) may be limited in a manner customary for limited conditionality acquisition financings if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (iii) after giving effect to such Incremental Commitments and the making of Loans pursuant thereto (and based on the assumption that the full amount of the Aggregate Revolving Commitment, including any Incremental Revolving Commitments, has been funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the covenant calculations the cash proceeds of the Borrowing under any such Incremental Revolving Facility or Incremental Term Facility but not excluding the use of such proceeds), Holdings and the Borrower shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.12 (or, if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition, on the date of signing of the definitive agreement for such acquisition), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (v) Holdings and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction, including a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above. 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, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the Aggregate Revolving Commitment shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitments, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(dh) Notwithstanding anything This Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretocontrary.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)
Incremental Facilities. (a) The Parent Borrower and/or may by written notice to the Administrative Agent at any Additional Borrower and any time after the Acquisition Effective Date elect to request the establishment of one or more Lenders new term loan commitments (including New Lendersthe “Incremental Commitments”), in an aggregate principal amount not to exceed the Maximum Incremental Facilities Amount on such date, and, in each case, not to be less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the Maximum Incremental Facilities Amount on such date of determination), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may from time be agreed by the Administrative Agent); provided that any Lender offered or approached to time agree provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment; provided, further, that any Incremental Lender shall be subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed) if and to the extent that such Lenders shall make, obtain or increase the amount approval would be required pursuant to Section 9.04 for an assignment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which to such Incremental Term Loans Lender. The Borrower shall notify the Administrative Agent prior to the Increased Amount Date of the identity of each Lender or Incremental Revolving Commitments are made availableother Person that is an Eligible Assignee (each, an “Incremental FacilityLender”) to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations.
(b) Such Incremental Commitments shall become effective as of such Increased Amount Date; provided, that:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or Investment permitted hereunder, no Event of Default pursuant to Section 7.01(c), Section 7.01(e), Section 7.01(f), Section 7.02(a), Section 7.02(b), Section 7.02(h), Section 7.02(i) or Section 7.02(j) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) as applicablea condition to the Borrowing under such Incremental Commitments:
A. each of the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects on and as of the date of such Borrowing (both immediately before and after giving effect to such Incremental Commitments and the application of the proceeds thereof) with the same effect as though made on and as of the date of such Borrowing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by executing “materiality”, “Material Adverse Effect” or similar language shall be true and delivering correct (after giving effect to any qualification therein) in all respects; and
B. the Administrative Agent shall have received a fully executed and delivered Borrowing Request in accordance with the requirements hereof, provided that, if the proceeds of any Incremental Commitments are being used to finance a Permitted Acquisition or Investment permitted hereunder, the reference in paragraph (ii)(A) of this Section 2.17(b) to the accuracy of the representations and warranties shall refer to the accuracy of (a) the representations and warranties that would constitute Specified Representations and (y) the representations and warranties made by, or with respect to, the target or the assets that are the subject of such Permitted Acquisition or Investment in the definitive documentation related thereto that are material to the interests of the applicable Incremental Lenders (but only to the extent that the Borrower or its Subsidiaries have the right to terminate its or their respective obligations under such documentation (or decline to consummate the transaction contemplated thereunder) as a result of a breach of such representations);
(iii) the Incremental Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower, the Incremental Lenders and the Administrative Agent;
(iv) the Borrower shall deliver or cause to be delivered any documents as reasonably requested by the Administrative Agent in connection with any such transaction, including (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date 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 and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents (including, for the avoidance of doubt, any Mortgage) as may be reasonably requested by the Administrative Agent; and
(v) the Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Commitments.
(c) On any Increased Amount Date on which any Incremental Commitments become effective, subject to the satisfaction of the foregoing terms and conditions, (i) each applicable Incremental Lender shall make a Loan to the Borrower (an Additional Credit Extension Amendment specifying “Incremental Loan”) in an amount equal to its Incremental Commitment and (ii) each Incremental Lender shall become a Lender hereunder with respect to the Incremental Commitment and the Incremental Loans made pursuant thereto.
(d) The terms and provisions of the Incremental Loans and Incremental Commitments shall be, except as otherwise set forth herein or in the Incremental Amendment, identical to the then existing Loans. In any case, (i) the amount Weighted Average Life to Maturity of such increase and all Incremental Loans shall be no shorter than the Facility or Facilities involvedWeighted Average Life to Maturity of the then existing Loans, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Loan Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Date shall be no earlier than the weighted average life to maturity of Latest Maturity Date at such time; provided, that at no time shall the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions Loans (including no payment or bankruptcy event of default)Incremental Loans) have more than five different maturity dates, would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fiii) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing security with the then existing Loans, (iv) all Incremental Loans shall be guaranteed by the Loan Parties and fees be secured by a lien on any property or as otherwise asset that secures the then existing Loans, (v) the interest margins applicable to the Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Incremental Amendment; provided, however, that if the All-In Yield applicable to such Incremental Loans shall be greater than the applicable All-In Yield payable on any other Class of Loans pursuant to the terms of this Agreement as amended through the date of such calculation by more than 50 basis points per annum (the amount of such excess, the “Yield Differential”), then the interest rate (together with, as provided in the proviso below, the Eurocurrency or Alternate Base Rate floor) with respect to each such Class of Loans shall be increased by the applicable Yield Differential; provided, further, that, if any Incremental Loans include a Eurocurrency or Alternate Base Rate floor that is greater than the Eurocurrency or Alternate Base Rate floor applicable to any existing Class of Loans such differential between interest rate floors shall be included in the calculation of All-In Yield for purposes of this clause (v), but only to the extent an increase in the Eurocurrency or Alternate Base Rate floor applicable to the existing Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Eurocurrency and Alternate Base Rate floors (but not the applicable rate unless otherwise required to be adjusted pursuant to this Section 2.25(a2.17(d), all terms of any Incremental Term Facility, if not consistent with ) applicable to the applicable existing Term Facility, Loans shall be determined increased to the extent of such differential between interest rate floors, (vi) any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, as specified in the Parent Borrower applicable Incremental Amendment and (vii) to the lenders extent the terms or provisions applicable to any Incremental Loans are inconsistent with the terms and provisions applicable to the then existing Loans (except to the extent permitted by clause (i), (ii), (v) or (vi) above or except for such Incremental Term Facility terms and provisions applicable only to periods after the Latest Maturity Date), they shall be reasonably satisfactory acceptable to the Administrative Agent; provided that .
(e) Incremental Commitments shall be documented pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, amendments to the other Loan Documents to be included in the Incremental Amendment, executed by the Borrower, each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of Lender providing such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Administrative Agent. The Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) Amendment may, without the consent of the Administrative Agentany other Loan Party, (x) each increase effected pursuant Agent or Lender, effect such amendments to this paragraph shall be in a minimum amount of at least $50,000,000 Agreement and (y) no more than five Incremental Facility Closing Dates the other Loan Documents as may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans necessary or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andappropriate, in the case reasonable opinion of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.17 and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (to be included in the Incremental Amendment) with the Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or Commitments increased or extended pursuant to this Section 2.17 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower and furnished in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.17, including any amendments that are not adverse to the other parties hereto.
(einterests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans that are intended to be fungible with the Initial Loans to be fungible with such Initial Loans, which shall include any amendments to Section 2.06(a) that do not reduce the ratable amortization received by each Lender thereunder. The Closing Date Borrower will use the proceeds of the Incremental Revolving Commitments Loans for any purpose not prohibited by this Agreement. No Lender shall be provided on the Closing Date as obligated to provide any Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this AgreementLoans.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions after the Closing Date, by written notice to the Administrative Agent, request:
(including New Lendersi) may from time to time agree that such Lenders shall make, obtain or an increase the amount of their Incremental Term Loans or in any Revolving Commitments (any such increased each, a “Revolving CommitmentsCommitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments” and ”),
(ii) one or more new term loan commitments of the same Class as any facility under which such Incremental outstanding Term Loans Loan (each, a “Term Loan Increase”), or
(iii) the addition of one or Incremental Revolving Commitments are made availablemore new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the “Incremental Facilities”); provided that the aggregate amount of all the Incremental Commitments at any time shall not exceed the Permitted Incremental Amount applicable to the Incremental Commitments at such time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as applicable, may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iii) the amount of such increase and the Facility or Facilities involved, Incremental Commitments being requested (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loans Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Applicable Margin for Borrower proposes to become an Incremental Lender, if such Incremental Term Loans; providedPerson is not then a Lender, that:an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent).
(Ab) the aggregate principal amount (or committed amount, if applicable) The terms and conditions of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event,
(Bi) (x) with respect if the Weighted Average Yield applicable to any Incremental Term Loans being incurred issued on or prior to finance a Permitted Acquisition or a similar permitted Investment designated the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the Parent Borrower applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of amended through the date of entry such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased to a level such that the Weighted Average Yield with respect to the Tranche B Term Loans is 0.50% per annum below the Weighted Average Yield with respect to such Incremental Loans (other than a shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter than the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as then-remaining Weighted Average Yield of the applicable Incremental Facility Activation DateTranche B Term Loans); provided, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of that, if any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoLoans, as applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable to any existing Class of Term Loans, such differential between interest rate floors shall be included in the calculation of Weighted Average Yield for purposes of this clause (i), no Default but only to the extent an increase in the Term SOFR or Event Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans shall be increased to the extent of Default has occurred and is continuing or shall result therefromsuch differential between interest rate floors;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Eii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Initial Tranche B Term Loans);
(iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (except in the case of other than an earlier maturity date for customary high-yield bridge loans financings, which, subject to customary conditions (including no payment or bankruptcy event of default)conditions, would either be automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to financing the stated maturity of which shall be no earlier than the Initial initial Tranche B Term FacilityMaturity Date);
(Fiv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and the Incremental Lenders and (y) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all other terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between terms of the Parent Borrower and the lenders for such Incremental Tranche B Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned)material respect, shall be reasonably satisfactory to the Administrative Agent (except for covenants and terms that apply solely to any period after the latest Maturity Date that is in effect on the effective date of such Incremental Facility Agreement) (it being understood that to the extent any financial maintenance covenant is added for the benefit of any Incremental Term Loans or any Incremental Term Commitments, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is also added for the benefit of any Tranche B Term Loans remaining outstanding after the effectiveness of such Incremental Facility Agreement);
(v) any Incremental Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Term Loans, as specified in the applicable Incremental Facility Agreement;
(vi) any Incremental Commitments and Incremental Loans shall, as elected by the Borrower, be equal or junior in right of payment with any remaining portion of the Facilities and, with respect to security with any remaining portion of the Facilities, pari passu, junior or unsecured and shall not be secured by any assets other than the Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any such Incremental Commitments or Incremental Loans that are pari passu with or junior to the Facilities with respect to security shall be subject to the Pari Passu Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement, as applicable);
(vii) the proceeds of any Incremental Facility shall be used for general corporate purposes, including to finance growth Capital Expenditures, to make Permitted Acquisitions and the related transactions and payment of fees and expenses with respect thereto, to make Restricted Payments and to refinance existing Indebtedness to the extent permitted hereunder, or for any other purpose not prohibited by this Agreement; and
(viii) the Incremental Revolving Commitments and Incremental Revolving Loans shall be identical to the Revolving Commitments and the Revolving Loans, other than as to their Maturity Date and as set forth in this Section 2.21 (Incremental Facilities); provided that, notwithstanding anything to the contrary in this Section 2.21 (Incremental Facilities) or otherwise:
(A) any such Incremental Revolving Commitments or Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans;
(B) any such Incremental Revolving Commitments or Incremental Revolving Loans shall not mature earlier than the latest Maturity Date of any Revolving Loans outstanding at the time of incurrence of such Incremental Revolving Commitments;
(C) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Commitments and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (D) below)) of Loans with respect to Incremental Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments on the Incremental Facility Closing Date; and
(D) the permanent repayment of Revolving Loans with respect to, and termination of, Incremental Revolving Commitments shall be made on a pro rata basis with all other Revolving 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.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Parent, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below), no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Incremental Loans thereunder to be made on such date, (ii) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below), on the date of effectiveness thereof, the representations and warranties set forth in Article III and in the other 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 true and correct in all material respects as of such prior date, (iii) after giving effect to such Incremental Revolving LoansCommitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Issuing Lenders and Borrower shall be in compliance with the Swingline Lender and Financial Covenants set forth in Section 6.12 (iiFinancial Covenants) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis and (iv) the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference have delivered or caused to have been delivered to the amount of each Type of Loan of Administrative Agent such Borrower (andcustomary legal opinions, in the case of Eurocurrency Loans or Term Benchmark Loansboard resolutions, of each Eurocurrency Tranche or Term Benchmark Tranchesecretary’s certificates, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date officer’s certificates and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate documents as shall reasonably be agreed upon between requested by the Parent Borrower and the relevant Lender)Administrative Agent in connection with any such transaction.
(d) Notwithstanding anything to the contrary foregoing provisions of this Section 2.21 (Incremental Facilities) or in this Agreementany other provision of any Loan Document, each if the proceeds of the parties hereto hereby agrees that, on each any Incremental Facility Closing Dateare intended to be applied to finance a Limited Condition Acquisition, this Agreement shall be amended to the extent (but only agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the extentBorrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: (i) (x) on the date of execution of the definitive documentation with respect to such Limited Condition Acquisition, all the requirements set forth in clause (c)(i) and (ii) above shall be satisfied and (y) on the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Loans, (A) no Event of Default under Section 7.01(b), (c), (g) or (h) (Events of Default), shall have occurred and be continuing and (B) the only representations and warranties the accuracy of which shall be a condition to funding such Incremental Loans shall be the Specified Representations (conformed as necessary to reflect apply to such Limited Condition Acquisition) and the existence Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and terms warranties set forth in Article III on the date of such closing and funding of such Limited Condition Acquisition, it being understood and agreed that only the representations and warranties set forth in clause (B) shall be conditions to funding of such Incremental Loans on such closing date; (ii) after giving effect to such Incremental Commitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Term Loans Commitments on a pro forma basis and (iii) the Borrower shall have delivered or Revolving Commitments evidenced thereby. Any caused to have been delivered to the Administrative Agent such amendment customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction.
(e) 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 effected necessary or appropriate, in writing by the opinion of the Administrative Agent, to give effect to the provisions of this Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Parent Borrower and furnished in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the other parties heretointerests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans to be fungible for United States federal income tax purposes with an existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder.
(ef) The Closing Date Upon the effectiveness of an Incremental Revolving Commitments Commitment of any Incremental Lender, such Incremental Lender shall be provided on deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the Closing Date applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Commitments, subject Commitments and Incremental Loans for all purposes of this Agreement.
(g) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.
(h) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.2.21(a) (Incrementa
Appears in 2 contracts
Sources: Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying elect to request, prior to the Latest Maturity Date, additional term loans hereunder (any such additional term loans, the “Incremental Loans” and the commitments therefor, the “Incremental Commitments”); provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the total aggregate initial principal amount (as of the date of incurrence or committed amount, if applicableavailability thereof) of all such requested Incremental Term Loans and or Incremental Revolving Commitments, together with when added to the aggregate principal amount of any Permitted Incremental Equivalent DebtDebt incurred at such time, shall not exceed the Incremental Cap;Limit on such date, (ii) the total aggregate principal amount of such Incremental Loans or Incremental Commitments shall, unless otherwise approved by the Administrative Agent, not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i) and (iii) the incurrence of any such Incremental Loans or Incremental Commitments is permitted pursuant to the terms of the Revolving Indebtedness Documents.
(Bb) Each such notice shall specify (i) the date (each, an “Incremental Closing Date”) on which the Borrower proposes that the Incremental Loans shall be made, which shall be a date not less than 10 Business Days (or such lesser number of days as may be acceptable to the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (i) the identity of each Lender or other Person that is an eligible assignee pursuant to Section 13.6(b) to whom the Borrower proposes any portion of such Incremental Commitments be allocated (each, an “Incremental Lender”) and the amounts of such allocations; provided that (x) with respect no Incremental Lender that is not an existing Lender, an Affiliate of a Lender or an Approved Fund shall provide Incremental Loans unless the Administrative Agent shall have consented thereto (such consent not to any Incremental Term Loans being incurred to finance a Permitted Acquisition be unreasonably withheld or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred delayed) and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwiseany Lender approached to provide all or a portion of any Incremental Loans may elect or decline, as in its sole discretion, to provide such Incremental Loans.
(c) The terms of each incurrence of Incremental Loans or Incremental Commitments shall be determined by the Borrower and the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment Lenders; provided that:
(including the making of any i) Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Cx) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, secured on a pro forma pari passu basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event Obligations shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no not mature earlier than the weighted average life Latest Maturity Date and the Weighted Average Life to maturity Maturity of such Incremental Loans or Incremental Commitments shall not be shorter than the remaining Weighted Average Life to Maturity of the Initial Term Facility Loans outstanding as of such Incremental Closing Date and (y) either secured on a junior basis to the Obligations or unsecured shall not mature earlier than 91 days after the Latest Maturity Date of the Loans outstanding as of such Incremental Closing Date (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that refinancing which does not have a shorter weighted average life to maturity mature earlier than 91 days after the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect Latest Maturity Date of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or outstanding as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and the applicable Credit Party agrees at the time of incurrence thereof to take all such actions required to cause such conversion or exchange) and shall require no amortization, prepayments, redemptions, repurchases or similar required payments (other than customary offers to purchase in connection with a change of control or cross-acceleration) prior to its stated final maturity date;
(ii) the aggregate amount All-In Yield of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to Incremental Loans incurred within twelve (12) months after the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as Closing Date shall be agreed upon between determined by the Parent Borrower and the relevant Lenderapplicable Incremental Lenders (provided that the All-In Yield applicable to such Incremental Loans shall not be greater than the All-In Yield for the Initial Loans plus 50 basis points per annum unless the ABR Margin and the Eurodollar Margin are increased so as to cause the All-In Yield for the Initial Loans to equal the All-In Yield for such Incremental Loans minus 50 basis points per annum).
; (diii) Notwithstanding anything (A) if such Incremental Loans are secured, they will be secured solely by Collateral on pari passu or junior (but in no event senior) basis with the Obligations and, if necessary, will be subject to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each an Acceptable Intercreditor Agreement and (B) no Incremental Facility Closing Date, this Agreement Loans shall be amended to guaranteed by any Person other than the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.Subsidiary Guarantors;
Appears in 2 contracts
Sources: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders (including New Lenders) may from time occasions after the Closing Date, by written notice to time agree the Administrative Agent, request the establishment of Incremental Commitments; provided that such Lenders shall make, obtain or increase the aggregate amount of their the Incremental Commitments incurred under this Section 2.22 on any date shall not exceed the sum of (x) an amount equal to the Base Incremental Amount in effect on such date, (y) an amount subject to the Maximum Incremental Amount as of such date and (z) an amount equal to the Voluntary Prepayment Amount as of such date (it being understood that (A) the Company shall be deemed to have used amounts under clause (y) above prior to utilization of amounts under clause (x) or (z) above and (B) the proceeds from any such incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clause (y) above and then calculating the incurrence under clauses (x) and/or (z) above). Each such notice shall specify (A) whether the Company is requesting Incremental Term Loans Commitments or Revolving Commitments (any such increased Incremental Revolving Commitments, “(B) the date on which the Company proposes that the Incremental Revolving Commitments” and any facility under Commitments shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent and (C) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitments and (y) any Person that the Company proposes to become an Additional Credit Extension Amendment specifying Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee).
(b) The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, substantially consistent to those of the Term Commitments and the Term Loans and, to the extent such terms and conditions are not substantially consistent with the terms and conditions applicable to the Term Commitments and the Term Loans, such terms and conditions shall not be more favorable, taken as a whole, to the Incremental Term Lenders providing such Incremental Term Facility than the terms of the existing Term Commitments and the Term Loans, as applicable (other than with respect to terms and conditions applicable only after the Maturity Date); provided that (i) the amount of such increase upfront fees, original issue discount, interest rates, interest rate margins, interest rate floors, prepayment premiums, “MFN” pricing protection, amortization schedule and final maturity applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Company and the Facility or Facilities involvedIncremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) except in the case of an Incremental Term Facility effected as an increase to an existing Class of Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Terms Loans, (iii) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Facility);
Maturity Date and (Fiv) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with for purposes of prepayments (either mandatory or optional), shall be treated substantially the applicable existing same as (or, at the election of the Incremental Lenders providing such Incremental Term Facility, on a basis less favorable than) the Initial Term Loans. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be determined between designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Any Incremental Revolving Commitments established pursuant to an Incremental Facility Amendment shall have substantially the Parent Borrower same terms as and be deemed to be Revolving Commitments for all purposes of this Agreement. Each Incremental Term Facility, any Incremental Revolving Commitments and all extensions of credit thereunder (i) shall be secured by the same Collateral securing the other Loan Document Obligations on a pari passu basis with the Liens on the Collateral securing the other Loan Document Obligations, (ii) shall not be secured by any property or assets of the Company or any of the Subsidiaries other than the Collateral (or property or assets that substantially concurrently become Collateral), unless otherwise permitted by this Agreement, (iii) shall be Guaranteed by the same Loan Parties that Guarantee the other Loan Document Obligations and (iv) shall not be Guaranteed by any Persons other than the Loan Parties, unless otherwise permitted by this Agreement.
(c) The Incremental Term Commitments and Incremental Term Facilities relating thereto and the lenders for Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company, each Incremental Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments (I) without and assuming that the consent full amount of such Incremental Commitments shall have been funded as Loans on such date); provided that in case of any Incremental Acquisition Term Facility if agreed by all applicable Incremental Term Lenders, the foregoing shall be satisfied if no Event of Default shall have occurred and be continuing on the date of execution of the Administrative Agentapplicable acquisition or investment documentation and no Event of Default under clause (a), (xb), (h) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility or (i) to of Article VII shall have occurred and is continuing on the extent such consent would be required for an assignment effective date of such Incremental Acquisition Term Facility, in each case determined after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditionedon the applicable date), shall be reasonably satisfactory to (ii) on the Administrative Agent anddate of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Revolving LoansAcquisition Term Facility if agreed by all applicable Incremental Term Lenders, the Issuing Lenders Specified Representations and the Swingline Lender Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality or Material Adverse Effect, in all respects and (iiB) 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 become be so true and correct on and as of such prior date, (iii) the Company shall be in compliance on a Pro Forma Basis with the financial covenant set forth in Section 6.13, (iv) the relevant Borrower shall make any payments required to be made pursuant to Section 2.17 in connection with such Incremental Commitments and the related transactions under this Section 2.22 and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and, other than in connection with a Limited Condition Acquisition, consents and approvals and other documents as shall be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.22.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under this Agreement pursuant the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Additional Credit Extension Incremental Term Commitment of any Series shall make an Incremental Term Loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cf) Unless otherwise agreed by On the Administrative Agentdate of effectiveness of any Incremental Revolving Commitments, on each Revolving Lender of the applicable Class shall assign to each Incremental Facility Closing Date Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Revolving Lender, at the principal amount thereof (together with respect to accrued interest), such interests in the Revolving Facility, each Borrower shall borrow applicable Class of Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency the Dollar Tranche Revolving Commitments, participations in Letters of Credit and Swingline Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and, if applicable, participations in Letters of Credit and Swingline Loans will be held by all of the Revolving Lenders of the applicable Class (including such Incremental Facility Closing Date and (iiRevolving Lenders) ratably in accordance with their Revolving Percentages after giving effect to the aggregate amount effectiveness of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increasedIncremental Revolving Commitments. The Eurocurrency Rate applicable 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 any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed the transactions effected pursuant to the immediately preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)sentence.
(dg) Notwithstanding anything to The Administrative Agent shall notify the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.22(a) and of the Parent Borrower and furnished to effectiveness of any Incremental Commitments in each case advising the other parties heretoLenders of the details thereof.
(eh) The Closing Date If an Incremental Revolving Commitments Term Loan borrowed by a Borrower (other than a Foreign Obligor) hereunder would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, before the close of each accrual period ending after the fifth anniversary of the issue date of such Loan, the applicable Borrower shall be provided make such payments on the Closing Date Incremental Term Loan as required to prevent the Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent Term Loan from being treated as an “applicable to the initial Revolving Commitments and without any further amendment to this Agreementhigh yield discount obligation”.
Appears in 2 contracts
Sources: Credit Agreement (Abm Industries Inc /De/), Credit Agreement (Abm Industries Inc /De/)
Incremental Facilities. (a) The Parent Subject to Section 2.11(b), the Borrower and/or any Additional Borrower and any may by written notice to Agent elect to request the establishment of one or more Lenders Incremental Term Loan commitments (including New Lenders) may from time to time agree that such Lenders shall makethe “Incremental Term Loan Commitments”), obtain or increase the in an aggregate amount of their up to $70,000,000. Each such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Term Loans Loan Commitments shall be effective, which shall be a date not less than 30 days after the date on which such notice is delivered to the Agent. The opportunity to commit to provide all or Revolving a portion of the Incremental Term Loan Commitment shall be offered by the Borrower to any Eligible Incremental Lenders. To the extent any Eligible Incremental Lenders have provided a commitment to provide such Incremental Term Loan Commitment, the Borrower shall provide a copy of such commitment letter to the Agent for distribution to the existing Lenders and offer the existing Lenders the opportunity to provide such Incremental Term Loan Commitment on the same terms as set forth in such commitment letter (the date the Agent receives such commitment letter, the “Notice Date”). If the existing Lenders have not agreed in writing to provide such Incremental Term Loan Commitment within 15 days of the Notice Date, then the Eligible Incremental Lenders may provide the Incremental Term Loan Commitment on the terms of such commitment letter and subject to this Section 2.11. Any existing Lender approached to provide all or a portion of such Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan Commitment.
(b) Such Incremental Term Loan Commitments shall become effective, as of such Increased Amount Date, subject to the satisfaction of each of the following conditions:
(i) the Lenders have funded 100% of the aggregate amount of the Term Loan B Commitments of the Lenders; (ii) the Agent has obtained the commitment of one or more Incremental Term Loan Lenders to provide the applicable Incremental Term Loan and any such increased Revolving CommitmentsIncremental Term Loan Lenders, “Incremental Revolving Commitments” the Borrower and any facility under the Agent have signed an amendment to this Agreement pursuant to which such Incremental Term Loans or Incremental Revolving Commitments are made availableLoan Lenders agree to make, subject to the terms of this Agreement, a term loan to the Borrower (an “Incremental FacilityTerm Loan”) in an amount equal to its Incremental Term Loan Commitment and to otherwise evidence such Incremental Term Loan, in form and substance reasonably satisfactory to the Agent (each, a ”Joinder Agreement”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, ; (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist on such Increased Amount Date; (iv) the representations and is continuing as warranties of the date of entry into Credit Parties contained in this Agreement and the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or other Loan Documents shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respectsrespects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, except which representations and solely warranties shall be true and correct in all respects subject to such qualification) as of such Increased Amount Date to the same extent required by the lenders providing such Incremental Facility;
as though made on and as of that date (E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans both before and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement immediately after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentLoan), (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) except to the extent such consent would 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 (except that such materiality qualifier shall not be required for an assignment applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender earlier date; and (iiv) the Borrower shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
have reached agreement with the lenders making the Incremental Term Loan (cthe “Incremental Term Loan Lenders”) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facilityinterest margins applicable to such Incremental Term Loan (which interest margins may be higher than, each Borrower shall borrow Revolving Loans under equal to, or lower than the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference interest margins applicable to the amount Term Loan set forth in this Agreement immediately prior to the date of each Type of Loan the making of such Borrower (and, in the case of Eurocurrency Loans or Incremental Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark TrancheLoan, as applicable) which would then and shall have been outstanding from communicated the amount of such Lender interest margins to the Agent. Anything to the contrary contained herein notwithstanding, if the all in yield (iincluding interest margins, interest floors, original issue discount, closing fees or other similar yield related discounts based on an assumed four-year to life maturity, but excluding any arrangement, underwriting or similar fees that are not shared with all of the Lenders or prospective lenders) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on (the “All In Yield”) that is to be applicable to such Incremental Facility Closing Date and (ii) Term Loan is 50 basis points or more higher than the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then All In Yield applicable to the Eurocurrency Term Loans or Adjusted hereunder immediately prior to the applicable Increased Amount Date (the amount by which the interest margins are higher, the “Excess”), then the All In Yield applicable to each applicable Class of Term SOFR Rate for Term Benchmark Loans, as applicable, Loans immediately prior to the Increased Amount Date shall be increased by the amount of the other Lenders in Excess minus 50 basis points, effective on the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Increased Amount Date, this Agreement shall be amended to and without the extent (but only to the extent) necessary to reflect the existence and terms necessity of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing any action by the Administrative Agent and the Parent Borrower and furnished to the other parties any party hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Rent the Runway, Inc.), Credit Agreement (Rent the Runway, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans (an “Incremental Term Facility”) or Revolving Commitments (any such increased “Increased Revolving Commitments”; together with any Incremental Term Facility, the “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental FacilityFacilities”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involvedincrease, (ii) the applicable Incremental Increased Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (wx) the applicable Incremental Term Maturity Date, (xy) the amortization schedule for such Incremental Term Loans Loans, and (yz) the Applicable Margin for such Incremental Term Loans; provided, that:
that (Ai) no Event of Default exists or would exist after giving effect to such Incremental Facility, (ii) on a pro forma basis after giving effect to the aggregate principal amount incurrence of any such Incremental Facility (or committed amountassuming, if applicable) such Incremental Facility consists of all Incremental Term Loans and Incremental Increased Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing such Increased Revolving Commitments are fully drawn as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (ydate) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to other permitted pro forma adjustment events and any Additional Credit Extension Amendment repayments of Indebtedness after the beginning of the relevant period but prior to or simultaneous with the incurrence of such Incremental Facility, (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Cx) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower then most recently ended for which financial statements are available;
described in Section 6.1(a) or (Db) have been delivered, (y) the Consolidated First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the end of such fiscal quarter shall be no greater than 3.00:1.00 and (z) the Consolidated Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the end of such fiscal quarter shall be no greater than 4.00:1.00, (iii) the representations and warranties set forth in no event Article IV shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, respects (except and solely that such materiality qualifier shall not be applicable to the extent any such representations and warranties are already qualified or modified by materiality, it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required by to be true and correct in all material respects only as of such specified date) immediately prior to, and after giving effect to, the lenders providing incurrence of such Incremental Facility;
, (Eiv) the weighted average life maturity date and Weighted Average Life to maturity Maturity of any such Incremental Term Facility shall be no earlier than (or the weighted average life same as) the maturity date and Weighted Average Life to maturity Maturity, respectively, of the Initial Term Loans, (v) the interest rates and amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder and (vi) any Increased Revolving Commitments shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) and any Incremental Term Loan Facility shall be on terms and pursuant to documentation, to the extent such terms and documentation are not consistent with, in the case of an Incremental Term Facility, the Term Facility (except in to the case of customary high-yield bridge loans which, subject to customary conditions extent permitted by clause (including no payment or bankruptcy event of defaultiv) and (v) above), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative AgentAgent (including as to the identity of the New Lenders); provided provided, that each if the total yield (calculated for both the Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower Loans and the lenders Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below)) shared with all providers of such Incremental Term Loans, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the Eurodollar Rate or ABR in respect of any Incremental Term Loans exceeds the total yield for the existing Loans (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 Loans shall be increased so that the total yield in respect of such Incremental Term Facility elect lesser payments;
Loans is no higher 0.50% greater than the total yield for the existing Term Loans. Notwithstanding the foregoing, (Hi) any Incremental without the consent of the Required Lenders, the aggregate amount of Increased Revolving Commitments obtained after the Closing Date pursuant to this paragraph, together with the aggregate amount of Incremental Term Loans obtained pursuant to this paragraph and the Revolving Loans in respect thereof amount of any Second Lien Incremental Loans, shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility not exceed $25,000,000 and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(Iii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no 5,000,000. 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 New Lender that elects to provide Commitments under an Incremental Facility additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed or conditioned), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be reasonably satisfactory to the Administrative Agent andexecute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case form of any Incremental Revolving LoansExhibit H-3, the Issuing Lenders and the Swingline Lender and whereupon such bank, financial institution or other entity (iia “New Lender”) shall become a Lender under 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 pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to the Revolving Facility, each the Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Eurodollar Loans, of each Eurocurrency Tranche or Term Benchmark Eurodollar Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Eurodollar Base Rate applicable to any Eurocurrency Eurodollar Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Eurodollar Base Rate then applicable to the Eurocurrency Eurodollar Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Eurodollar Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Increased Facility Closing Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent and with the Parent Borrower Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or (ii) the establishment of Incremental Facility”)Term Loan Commitments. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loan 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 executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoan Commitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, Commitment or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichLoan Commitment may elect or decline, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects , to provide Commitments under such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Facility (i) to the extent Lender, if such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent Person is not to be unreasonably withheldthen a Lender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, the Issuing Lenders Bank and (z) none of the Swingline Lender Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20 shall not exceed the sum of (A) $75,000,000 plus (B) unlimited additional Incremental Revolving Commitments and/or Incremental Term Loan Commitments so long as, after giving pro forma effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full, but excluding the proceeds of any such Incremental Term Loans and/or Incremental Revolving Commitments for purposes of netting cash and Permitted Investments in the calculation of the Senior Secured Net Leverage Ratio), the Senior Secured Net Leverage Ratio shall not exceed 2.50 to 1.00 (other than to the extent such Incremental Revolving Commitments and/or Incremental Term Loan Commitments are incurred pursuant to this clause (B) concurrently with the incurrence of Incremental Revolving Commitments and/or Incremental Term Loan Commitments in reliance on clause (A) of this sentence, in which case the Senior Secured Net Leverage Ratio shall be permitted to exceed 2.50 to 1.00 to the extent of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments and/or Incremental Term Loan Commitments may be incurred pursuant to this clause (B) prior to utilization of the amount set forth in clause (A) of this sentence.
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments, Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the latest of the latest Maturity Date hereunder or any other then existing Incremental Term Loan Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall become have a Lender under this Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any other then existing Term Loans, (iii) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the then existing Term Loans and (iv) shall have the same Guarantees as and shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Revolving Loans and the then existing Term Loans (except in the case of clause (iii) and (iv) to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the latest Maturity Date hereunder may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date hereunder and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans and the then existing Term Loans. Any Incremental Term Loan Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Commitment hereunder, or provide Incremental Term Loans, at any time.
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless:
(i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect (including pro forma effect) to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date;
(ii) 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 in all material respects (or, if qualified by materiality or “Material Adverse Effect”, in all respects) on and as of such date;
(iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn but excluding the proceeds of any such Incremental Commitments for purposes of netting cash and Permitted Investments in the calculation of the Total Net Leverage Ratio), the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11;
(iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section;
(v) the Administrative Agent shall have received documents and opinions consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrower hereunder after giving effect to such increase;
(vi) any new Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Incremental Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, on each its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(vii) the other conditions, if any, set forth in the applicable Incremental Facility Closing Date Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h), (i) or (j) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the date of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, (4) as of the date of the borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with respect such representations and warranties to be reasonably determined by the Lenders providing such Incremental Term Loans) shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and (5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11. 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 Revolving Facility, each Borrower shall borrow Revolving Loans under provisions of this Section and no consent of any Lender (other than the relevant increased Revolving Commitments from each Lender Lenders participating in the relevant increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder (it being understood that such Incremental Lender shall deliver the documentation required under Section 2.17(f) to the Administrative Agent and the Borrower) and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Lender with a Revolving Commitment (immediately prior to giving effect to such Incremental Revolving Commitments) shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders with Revolving Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the Borrower in an amount determined equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the Borrower referred to in paragraph (a) above and of the amount effectiveness of any Incremental Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the conditions set forth in Section 5 be made pursuant to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementparagraph (e) above.
Appears in 2 contracts
Sources: Credit Agreement (Eagle Pharmaceuticals, Inc.), Credit Agreement (Eagle Pharmaceuticals, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall makeafter the Closing Date, obtain establish one or more tranches of term loans or increase the amount an outstanding tranche of their term loans (each an “Incremental Term Loans or Facility”), and/or increase the Aggregate Revolving Commitments (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Increase”); each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Borrower, as applicable, by executing and delivering to the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an Additional Credit Extension Amendment specifying “Incremental Facility Amendment”); provided that:
(i) the principal amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) shall not exceed the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, thatgreater of:
(A) $250,000,000 minus the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate initial principal amount of any Permitted all previously incurred Incremental Equivalent Debt, shall not exceed the Incremental Cap;Facilities; and
(B) the maximum amount that, after giving effect to such Incremental Facility on a Pro Forma Basis, would not cause the Consolidated Senior Secured Leverage Ratio to exceed 3.00:1.00 assuming the full amount of such Incremental Facility is fully drawn and excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of such calculation of the Consolidated Senior Secured Leverage Ratio.
(xii) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has shall have occurred and is continuing as of the date of entry into the applicable acquisitionbe continuing, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and no Default would exist after giving effect to any Additional Credit Extension Amendment (including Incremental Facility, both on the making of any date on which such Incremental Term Loans or Facility is requested and on the date on which such Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and Facility is continuing or shall result therefromto become effective;
(Ciii) the Parent Borrower each Incremental Facility shall be in compliance, a minimum amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term FacilityAdministrative Agent may agree);
(Fiv) all no existing Lender shall be under any obligation to provide any Incremental Term Loans Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(v) the borrower and guarantors for each Incremental Facility shall be the same as for the Revolving Loans made Credit Facility, each Incremental Facility shall be secured by Liens in respect of the Collateral that are parity with the Liens in the Collateral securing the Obligations and each Incremental Revolving Commitments Facility shall rank pari passu in right of payment and right with the Obligations;
(vi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of security (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (B) documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance acceptable to the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan PartyAdministrative Agent;
(Gvii) except with respect the Administrative Agent shall have received:
(A) a certificate of the Borrower dated as of the effective date of such Incremental Facility signed by a Responsible Officer of the Borrower (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of the Borrower approving such Incremental Facility (which may be the same resolutions as those delivered pursuant to pricing and fees or as otherwise set forth in this Section 2.25(a4.01(c)(ii), if such resolutions are deemed appropriate by the Administrative Agent for purposes of approving the Incremental Facility and authorizing the necessary actions incident thereto), and (2) certifying that, before and after giving effect to such Incremental Facility, (x) the representations and warranties contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all terms material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) on and as of the date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) as of such earlier date, and (y) no Default exists;
(B) a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility (and (1) assuming, in the case of any Incremental Term FacilityRevolving Increase, if not consistent that the entire amount of such Incremental Revolving Increase is funded and (2) excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of calculation of the Consolidated Senior Secured Leverage Ratio and the Consolidated Total Leverage Ratio) the Borrower is in compliance with the applicable existing Term financial covenants in Section 7.11 on a Pro Forma Basis;
(C) such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility;
(D) to the extent requested by the Administrative Agent, shall be determined between customary opinions of legal counsel to the Parent Borrower Borrower, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the lenders effective date of such Incremental Facility; and
(E) such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Term Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(viii) in the case of an Incremental Revolving Increase:
(A) the terms and conditions of such Incremental Revolving Increase (other than upfront fees payable to the Lenders providing such Incremental Revolving Increase and arrangement, structuring, underwriting and similar fees not paid generally to all Lenders providing such Incremental Revolving Increase) shall be the same as the terms applicable to the Aggregate Revolving Commitments hereunder; and
(B) on the effective date of such Incremental Revolving Increase, the existing Lenders with Revolving Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Revolving Increase and such assignments and adjustments, each Lender (including the Lenders providing such Incremental Revolving Increase) will hold its pro rata share (based on its Applicable Percentage of the increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans;
(ix) in the case of an Incremental Term Facility:
(A) the Administrative Agent shall have determined in its discretion in consultation with the Borrower whether such Incremental Term Facility is a tranche A term loan (an “Incremental Tranche A Term Facility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(B) the interest rate, interest rate margins, interest rate floors, fees, original issue discount, prepayment premiums, amortization, mandatory prepayments, “most favored nation” pricing protection and final maturity date for such Incremental Term Facility shall be as agreed by the Borrower and the Lenders providing such Incremental Term Facility; provided that that:
(1) the final maturity of such Incremental Term Facility shall not be earlier than the later of (x) the Maturity Date with respect to Revolving Loans and (y) the final maturity of any other Incremental Term Facility;
(2) (x) if such Incremental Term Facility is an Incremental Tranche A Term Facility, the Weighted Average Life of such Incremental Term Facility shall be customary for a tranche A term loan (as determined by the Administrative Agent in its discretion in consultation with the Borrower) and in any event shall not be shorter than the then remaining Weighted Average Life of any outstanding Incremental Tranche A Term Facility; and (y) if such Incremental Term Facility is an Incremental Tranche B Term Facility, the Weighted Average Life of such Incremental Term Facility shall be customary for a tranche B term loan (as determined by the Administrative Agent in its discretion in consultation with the Borrower) and in any event shall not be shorter than the then remaining Weighted Average Life of any outstanding Incremental Tranche B Term Facility; and
(3) prepayment requirements of such Incremental Term Facility shall be customary for term loan facilities (as determined by the Administrative Agent in its discretion);
(C) all other terms and conditions applicable to such Incremental Term Facility must be customary for tranche A term loans or a tranche B term loans, as applicable, as determined by the Administrative Agent in its discretion or otherwise acceptable to the Administrative Agent in its discretion;
(D) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility; and
(E) each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such other Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments Facilities pursuant to Section 10.6 2.05 (such consent not to be unreasonably withheld, delayed or conditioned), otherwise provide for more favorable prepayment treatment for the then outstanding other Incremental Term Facilities) and shall be reasonably satisfactory to have ratable voting rights with other Incremental Term Facilities (or otherwise provide for more favorable voting rights for the Administrative Agent and, in the case of any then outstanding other Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant LenderFacilities).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (5.11 Abr Corp.), Credit Agreement (Compass Group Diversified Holdings LLC)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower may, by written notice to the Administrative Agent and any one or more Lenders each Lender (including New Lenders) may from time with a copy to time agree that such Lenders shall makethe Collateral Agent), obtain or request, prior to the last day of the Revolving Period, an increase to the amount of their Incremental Term Loans or Revolving existing Commitments (any such increased Revolving increase, the “New Commitments, “Incremental Revolving Commitments” ”) by an amount not to exceed $400,000,000 (and the sum of the existing Commitments and any facility under which New Commitments shall not exceed $1,000,000,000 in the aggregate). Each such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying notice shall specify (i) the amount of such increase and the Facility or Facilities involvedNew Commitment, (ii) the applicable Incremental Facility Closing date (each, an “Increased Amount Date, ”) on which the Borrower proposes that the New Commitments shall be effective and approved in writing by the Administrative Agent and (iii) the identity of each Lender or other Person (each, an “Increasing Lender”) to whom the Borrower proposes any portion of such New Commitments be allocated and the amounts of such allocations (if then known); provided that any New Commitment shall first be offered to each existing Lender (pro rata) for a period of seven (7) Business Days prior to offering to any Person that is not an existing Lender. Such New Commitments shall become effective as of such Increased Amount Date if the Administrative Agent, the Required Lenders and each Lender whose Commitment is being increased thereby has consented thereto in their respective sole discretion and subject to any internal approvals; provided that (A) no Unmatured Event of Default, Event of Default or Borrowing Base Deficiency shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (B) the New Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender (if applicable), or one or more Joinder Supplements for any new Lender executed and delivered by the Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the Register; (C) the Borrower shall pay any applicable Borrower(srequired fees in connection with the New Commitments; (D) 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; and (ivE) the effectiveness of any allocation of New Commitments to a non-Lender shall be subject to (i) the prior written consent of the Administrative Agent and (ii) the Collateral Agent’s receipt of all documentation necessary for purposes of compliance with the applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Money Laundering Laws.
(b) On any Increased Amount Date on which New Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the Increasing Lenders, and each of the Increasing Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Advances Outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances will be held by existing Lenders and Increasing Lenders ratably in accordance with their Commitments after giving effect to the addition of such New Commitments to the Commitments, (ii) each New Commitment shall be deemed, for all purposes, a Commitment and each Advance made thereunder (a “New Advance”) shall be deemed, for all purposes, an Advance and (iii) each new Lender shall become a Lender with respect to the Commitments and all matters relating thereto.
(c) 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 New Commitments and the Increasing Lenders and (ii) in the case of Incremental Term Loanseach notice to any Lender, (w) the applicable Incremental Term Maturity Daterespective interests in such ▇▇▇▇▇▇’s Advances, (x) in each case subject to the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:assignments contemplated by this Section 2.20.
(Ad) The terms and provisions of the aggregate principal amount (New Advances shall be identical to the Advances. Each Assignment and Acceptance or committed amounteach Joinder Supplement, if as applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with may, without the aggregate principal amount consent of any Permitted Incremental Equivalent Debtother Lenders, shall not exceed effect such amendments to this Agreement and the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition other Transaction Documents as may be necessary or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingappropriate, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent opinion of the Administrative Agent, (x) each increase effected pursuant and consented to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), to effect the provisions of this Section 2.20. The effectiveness of any New Commitments shall be reasonably satisfactory to the Administrative Agent and, in the case of conditioned upon any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed such amendment being entered into by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Incremental Facilities. (a) The Parent Borrower may by written notice to the Administrative Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, the “Incremental Revolving Credit Commitments”) and/or any Additional Borrower and any incur one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or new term loan commitments and/or increase the commitments of any Class of Term Loans (the “Incremental Term Loan Commitments”) by an amount (1) not to exceed in the aggregate, at the time of their incurrence, the Incremental Available Amount referred to in clauses (a), (b) and (c)(i) of the definition thereof and (2) not less than, individually, $25,000,000.
(b) Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion); and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans or Revolving Commitments (may be treated as part of the same Class as any such increased Revolving Commitments, “other Incremental Revolving Commitments” and any facility under which Term Loans if such Incremental Term Loans have identical terms (other than effective yield) and are fungible for United States federal income tax purposes with such other Incremental Term Loans.
(c) 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 Incremental Revolving Credit Commitments and the Incremental Revolving Loan Lenders or Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable and (ii) in the case of each notice to any applicable Revolving Credit Lender of any such given Class, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans of such Class, in each case subject to the assignments contemplated by this Section.
(d) Such Incremental Revolving Credit Commitments are or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that:
(i) (x) subject, solely in the case of Incremental Term Loans, to Section 1.09(c), no Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable and the extensions of credit to be made availablethereunder on such date; provided that this clause (i)(x) may be waived or limited as agreed in the Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (y) the representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) on and as of such date, except in each case to the extent that such representations and warranties specifically refer to an “earlier date, in which case they shall be true and correct as of such earlier date); provided that, in the case of Incremental Facility”Term Loans incurred to finance a Permitted Acquisition or other Investment in the nature of an acquisition, this clause (i)(y) shall be limited to Sections 5.01(a), 5.01(b), 5.02(a), 5.13, 5.17, 5.18, 5.19 (other than the first or second sentence thereof) and 5.20;
(ii) the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 3.01);
(iii) the Incremental Facilities shall be Guaranteed by executing the Guarantors, rank pari passu in right of security with the other Facilities and delivering shall not be secured by any property or assets other than the Collateral;
(iv) all fees and reasonable out-of-pocket expenses owing to the Administrative Agent and the Lenders (other than a Defaulting Lender) in respect of the Incremental Revolving Credit Commitments and Incremental Term Loan Commitments shall have been paid; and
(v) the Borrower shall deliver or cause to be delivered legal opinions, officer’s certificates and such other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders of the Class being so increased shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders of the Class being so increased, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans of the Class being so increased and participations in Letters of Credit and Swing Line Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans and participations in Letters of Credit and Swing Line Loans will be held by existing Revolving Credit Lenders of such Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of the Class being so increased after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (ii) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of the Class being so increased and each Loan made thereunder (an Additional “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Extension Amendment specifying Loan of the Class being so increased and (iii) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto.
(f) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Class (or any Incremental Term Loan Commitments increasing any existing Term Loans) are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class or increase shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class or increase and (ii) each Incremental Term Loan Lender of such Class or increase shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class or increase and the Incremental Term Loans of such Class or increase made pursuant thereto.
(g) The terms (including pricing, “most favored nations” provisions, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions relating to excess cash flow, asset sale proceeds and condemnation proceeds) and conditions of the Incremental Term Loans and Incremental Term Loan Commitments shall be, except as otherwise explicitly set forth herein, as agreed in the Joinder Agreement between the Borrower, the applicable Incremental Term Loan Lenders providing such Incremental Term Loan Commitments and the Administrative Agent; provided that (i) the amount terms of such increase Indebtedness shall not be more restrictive, taken as a whole, to the Borrower and the Facility other Loan Parties than those set forth in this Agreement prior to the execution of such Joinder Agreement unless (x) such terms apply only after the Latest Maturity Date at the time such Indebtedness is established or Facilities involved(y) this Agreement is amended so that such terms are also applicable for the benefit of any Lenders under any then-existing Facilities, (ii) the applicable Weighted Average Life to Maturity of all Incremental Facility Closing DateTerm Loans of any such Class shall be no shorter than (x) if there are no Term Loans outstanding at such time, 36 months and (y) if there are Term Loans outstanding at such time, the Weighted Average Life to Maturity of any other Term Loans at the time of the incurrence of such Incremental Term Loans, (iii) the applicable Borrower(sIncremental Term Loan Maturity Date of each Class shall be no earlier than the Latest Maturity Date at the time of the incurrence of such Incremental Term Loans, (iv) the pricing of each Class of Incremental Term Loans may be subject to “most favored nations” provisions if and to the extent set forth in the Joinder Agreement for such Class and (ivv) in the case of Incremental Term Loans, such Indebtedness may participate on a pro rata basis or less than pro rata basis (wbut not on a greater than pro rata basis) in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Joinder Agreement, and in the case of Incremental Term Maturity DateRevolving Credit Commitments, (x) the amortization schedule for such Incremental Term Loans and Revolving Credit Commitments may participate on a pro rata basis or less than pro rata basis (ybut not on a greater than pro rata basis) in any mandatory reductions of Revolving Credit Commitments hereunder, as specified in the Applicable Margin for such Incremental Term Loans; provided, that:applicable Joinder Agreement.
(Ah) The terms and provisions of the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Revolving Loans and Incremental Revolving CommitmentsCredit Commitments shall be identical to the other Revolving Credit Loans of the Class being so increased and the Revolving Credit Commitments of the Class being so increased; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving Credit Facility of the Class being so increased, together the interest rate on the Revolving Credit Facility of such Class shall be increased to equal such required rate without further consent of the affected Lenders; provided, further, that if the Incremental Revolving Loan Lenders require a commitment fee on the undrawn portion of such Incremental Revolving Loans and Incremental Revolving Commitments in excess of the commitment fee then applicable to the Revolving Credit Facility of the Class being so increased, the commitment fee on the Revolving Credit Facility of such Class shall be increased to equal such commitment fee without further consent of the affected Lenders.
(i) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14 (including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to enable any Incremental Term Loans that are intended to be fungible with any other Term Loans to be fungible with such other Term Loans, which shall include any amendments that modify the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall scheduled installment payments to the extent such amendment does not exceed decrease the Incremental Cap;
(B) (x) with respect to any Incremental installment payment an existing Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately Lender would have received prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderamendment).
(dj) Notwithstanding anything This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretocontrary.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Post Holdings, Inc.), Credit Agreement (Post Holdings, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time on or after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request an increase to the size of an existing Facility (including New Lenderseach such increase, a “Term Loan Increase”) may from time to time agree that such Lenders shall make, obtain and/or the establishment of one or increase the amount of their Incremental Term Loans or Revolving Commitments more incremental term loan facilities (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableeach, an “Incremental Term Loan; each Incremental Term Loan is referred to individually as an “Incremental Term Facility”); each Term Loan Increase and Incremental Term Facility are collectively referred to as a “Commitment Increase”) such that the aggregate amount of the Facilities as so increased, including all such Incremental Term Facilities, does not exceed at any time $950,000,000; provided, that each such Commitment Increase shall be in an aggregate principal amount of not less than $10,000,000. Each such notice shall specify the date on which the Borrower proposes that such Commitment Increase shall be effective, which shall be a date not less than five (5) Business Days (or such lesser number of days as applicable, by executing and delivering the Administrative Agent shall agree) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying (i) Agent. The Administrative Agent, the amount Arrangers, the Syndication Agents and/or their respective Affiliates shall use commercially reasonable efforts, with the assistance of such increase and the Facility Borrower, to arrange a syndicate of Lenders or Facilities involved, (ii) other Persons that are Eligible Assignees willing to hold the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, requested Commitment Increase; provided that (x) the amortization schedule for such Incremental Term Loans any Lender approached to provide all or a portion of any Commitment Increase may elect or decline, in its sole discretion, to participate in a Commitment Increase, and (y) the Applicable Margin for any Lender or other Person that is an Eligible Assignee to whom any portion of such Commitment Increase shall be allocated (each, an “Incremental Term LoansLoan Lender”) shall be subject to the approval of the Borrower and the Administrative Agent (such approval not to be unreasonably withheld or delayed), to the extent required by Section 9.04(b).
(b) The Administrative Agent and the Borrower shall thereafter determine the effective date (each, an “Increased Amount Date”) and the final allocation of such Commitment Increase among the Lenders and Eligible Assignees; provided, thatprovided that the effectiveness of any Commitment Increase and the availability of any borrowings under any such Commitment Increase on the Increased Amount Date shall be subject to the satisfaction of the following conditions precedent:
(Ai) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to such Commitment Increase and borrowings and the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting use of proceeds thereof thereof, no Event of Default shall exist and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are availablebe continuing;
(Dii) the representations and warranties made or deemed made by the Borrower in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects, respects on the Increased Amount Date of such Commitment Increase except and solely to the extent required that such representations and warranties expressly relate solely 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) or are qualified by materiality (in which case such representations and warranties shall be true and correct in all respects) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents;
(iii) payment by the lenders providing Borrower to the Joint Lead Arrangers/Joint Bookrunners and/or the Administrative Agent, for its own account and/or for the benefit of the Incremental Term Loan Lenders participating in such Commitment Increase, of any applicable fees and expenses required to be paid as of the applicable Increased Amount Date;
(iv) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(A) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (x) all corporate or other necessary action taken by the Borrower to authorize such Commitment Increase and (y) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Commitment Increase;
(B) a certificate of the Borrower dated as of the applicable Increased Amount Date signed by an Authorized Officer thereof, certifying that, before and after giving effect to such Incremental Term Facility, the conditions in clauses (i) and (ii) above have been satisfied;
(C) if requested by the Administrative Agent, a customary opinion of counsel to the Borrower and the Guarantors (which may be in substantially the same form as delivered on the Effective Date and may be delivered by internal counsel of the Borrower), and addressed to the Administrative Agent and the Lenders;
(D) if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lender;
(E) a joinder agreement in form and substance reasonably satisfactory to the weighted average life Administrative Agent and its counsel (a “New Lender Joinder Agreement”) for each Eligible Assignee that is not an existing Lender and is becoming a Lender in connection with such Commitment Increase, duly executed by the Borrower and each such Eligible Assignee and acknowledged and, if required pursuant to maturity Section 9.04(b), consented to in writing by the Administrative Agent; and
(F) written confirmation from each existing Lender, if any, participating in such Commitment Increase of the amount of New Term Loans to be provided by it;
(v) any Commitment Increase that constitutes an increase in an existing Facility shall be on the same terms as the Class or tranche of the Facility being increased (in each case, other than pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions or additional terms applicable only to periods after the Maturity Date);
(vi) all incremental commitments and loans provided as part of a newly established Incremental Term Facility shall be, subject to Section 9.02(b)(iv) and clauses (v), (x) and (z) of the second proviso to Section 9.02(b), on terms agreed to by the Borrower and the Lenders providing such Incremental Term Facility; provided that (i) if the terms of such Incremental Term Facility (other than final maturity) are not the same as the terms of a then existing tranche of the Term Loan Facility, the operational, technical and administrative provisions of such Incremental Term Facility shall be no earlier than on terms reasonably acceptable to the weighted average life to maturity of the Initial Term Facility Administrative Agent, and (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fii) all Incremental Term Loans and any Revolving Loans made in respect of under each Incremental Revolving Commitments Term Facility shall rank pari passu in right of payment and right of security in respect of the Collateral with the all other Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be treated substantially the same as (and in any event no more favorably than) all other Term Loans. Incremental Term Facilities may be made hereunder pursuant to a Person that is not supplement, an amendment or an amendment and restatement (an “Incremental Term Facility Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Term Loan Lender (including any Eligible Assignee becoming a party to this Agreement as an Incremental Term Loan Party;
(GLender) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in Section 9.02, the Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this AgreementAgreement and the other Loan Documents as may be necessary or appropriate, each in the reasonable opinion of the parties hereto hereby agrees thatAdministrative Agent, to effect the provisions of this Section 2.04. Each Incremental Term Facility will be on such terms (including as to amortization and maturity) as are agreed to by the Borrower and each Incremental Term Loan Lender with respect to such Incremental Term Facility Closing but all New Term Loans under any such Incremental Term Facility will in any event mature on the Maturity Date; and
(vii) upon the reasonable request of any Lender or any Eligible Assignee participating in such Incremental Term Facility made at least ten (10) Business Days prior to the applicable Increased Amount Date, this Agreement the Borrower shall have provided to such Lender or Eligible Assignee, and such Lender or Eligible Assignee shall be amended to reasonably satisfied with, the extent (but only to documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent Act and the Parent Borrower and furnished Beneficial Ownership Regulation, if applicable, in each case at least five (5) Business Days prior to the other parties heretosuch Increased Amount Date.
(ec) The Closing [Intentionally omitted].
(d) On any Increased Amount Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitmentswhich any Commitment Increase is effected, subject to the satisfaction of the foregoing terms and conditions and the conditions set forth in Section 5 4.02, each Incremental Term Loan Lender participating in such Commitment Increase shall make a Loan to the same extent applicable Borrower (a “New Term Loan”) in an amount equal to its allocated share of such Commitment Increase.
(e) On each Increased Amount Date, the Administrative Agent shall notify the Lenders of the occurrence of the Incremental Term Facility effected on such Increased Amount Date, the amount of the Incremental Term Facility and the amount of the Incremental Term Commitment of each Term Loan Lender as a result thereof.
(f) The upfront fees payable to the initial Revolving Commitments Incremental Term Loan Lenders with respect to any Incremental Term Facility shall be determined by the Borrower and such Incremental Term Loan Lenders.
(g) Subject to the foregoing, the Borrower, the Incremental Term Loan Lenders participating in any Incremental Term Facility and the Administrative Agent may, without the consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to such Incremental Term Facility and the provisions of this Section 2.04.
(h) This Section 2.04 shall supersede any provisions in Section 2.18(c) or 9.02(b) to the contrary.
Appears in 2 contracts
Sources: Term Loan Agreement (Invitation Homes Inc.), Term Loan Agreement (Invitation Homes Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
; (B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Amendment No. 4 (Somnigroup International Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders may by written notice to the Administrative Agent elect to request (including New LendersA) may from time prior to time agree that such Lenders shall makethe Revolving Commitment Termination Date, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or (B) prior to the Tranche BRestatement Effective Date Term Loan Maturity Date, the establishment of one or more new term loan commitments (the “Incremental Term Loans Loan Commitments”; together with the Incremental Revolving Commitments, the “Incremental Facilities”), by an amount not in excess of, at any time on and after the Restatement Effective Date, the sum of (i) $100,000,000 in the aggregate minus the aggregate amount of Indebtedness incurred pursuant to Section 2.24(a)(B)(i) (or any similar incremental “free and clear” basket) of the Second Lien Credit Agreement and (ii) an unlimited amount so long as such amount at such time could be incurred without causing the pro forma First Lien Leverage Ratio to exceed 3.50:1.00 (assuming that (x) the Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans fully drawn and (y) the Applicable Margin cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Indebtedness for purposes of calculating such First Lien Leverage Ratio); provided that no such Incremental Revolving Commitments or Incremental Term Loans; providedLoan Commitments shall be in an aggregate amount less than $25,000,000 (except as shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $100,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date pursuant to clause (i) above), that:
and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the aggregate principal amount date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Commitments or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Loan Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtas applicable, shall be effective, which shall be a date not exceed less than 10 Business Days after the Incremental Cap;
date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (xeach, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) subject to the terms and conditions set forth in Section 1.04 with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”Condition Acquisitions, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Incremental Revolving Commitments or (y) otherwiseIncremental Term Loan Commitments, as of applicable; (2) Facilities; (2) subject to the applicable Incremental Facility Activation Dateterms and conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, immediately prior to both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Series of Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred the conditions set forth in Section 3.02 shall be satisfied; (3) subject to the terms and is continuing or shall result therefrom;
(C) the Parent Borrower conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, Holdings shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis compliance (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, calculated in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made accordance with the proceeds thereof)), definition of Consolidated Adjusted EBITDA) with each of the financial covenants set forth in Section 7.1, recomputed 6.07 as of the last day of the most recently ended fiscal quarter Fiscal Quarter, after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the Parent relevant determination period but prior to or simultaneous with the borrowing of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the Borrower for which financial statements are available;
(Dshall make any payments required pursuant to Section 2.18(c) in no event shall it be a condition to connection with the effectiveness of, Incremental Revolving Commitments or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility Loan Commitments, as applicable; (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F6) all Incremental Term Loans other fees and any Revolving Loans made expenses owing in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; provided that (7) such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall share pari passu in the Guarantees and Collateral; and (8) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans 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 will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender of any Series shall share ratably make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any mandatory prepayments Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the applicable Term Facility unless the Parent Borrower Borrower’s notice of each Increased Amount Date and the lenders in respect of such Incremental Term Facility elect lesser payments;
thereof (Hyx) any the Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments shall become Revolving Commitments under this Agreement after giving effect to and the Incremental Term Loan Lenders of such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentSeries, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 as applicable and (yzy) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of each notice to any Incremental Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on in each Incremental Facility Closing Date with respect case subject to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined assignments contemplated by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoSection.
(e) The Closing Date terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term Loans and as set forth in the Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental Revolving Commitments Loans shall be provided on identical to the Closing Date Revolving Loans and such Incremental Revolving Loans will be documented solely as Incremental an increase to the Revolving Commitments, subject without any change in terms other than any change that is more favorable to the conditions set forth in Section 5 Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall be empowered to, on behalf of all the Revolving Lenders, execute an amendment to the same definitive documentation relating to the Revolving Loans in order to give effect to such a change more favorable to the Revolving Lenders). 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 existing Term Loans (except by virtue of amortization or prepayment of such existing Term Loans prior to such date of determination), (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of the existing Term Loans, and (iii) if the “yield” of any relevant Loan exceeds the “yield” on the existing Term Loans by more than 50 basis points, the applicable margins for the existing Term Loans shall be increased to the extent necessary so that the “yield” on such Term Loans is 50 basis points less than the “yield” on such relevant Incremental Term Loans (for purposes of this paragraph “yield” shall be reasonably determined by the Administrative Agent (w) to include the applicable interest rate margin, (x) to exclude arrangement, commitment, structuring or other fees payable to the Joint Lead Arrangers (or their respective Affiliates) in connection with such Loans or to one or more arrangers (or their Affiliates) of any such Loan that are not shared with all Lenders providing such Loans, (y) to include original issue discount and upfront fees paid to the Lenders thereunder (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity), and (z) to include, if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under the existing Term Loans, such differential between interest rate floors equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term Loans shall be required, but only to the extent an increase in the interest rate floor in the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the initial Revolving Commitments and existing Term Loans shall be increased to the extent of such differential between interest rate floors). Each Joinder Agreement may, without the consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other CreditLoan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.24.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (RadNet, Inc.), Credit and Guaranty Agreement (RadNet, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time on or after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing aggregate Revolving Commitments (each such increase, a “Revolving Facility Increase”) and/or (B) an increase to the size of the existing Term Loan Facility and/or the establishment of one or more incremental term loan facilities to the Term Loan Facility (whether or not a separate tranche, an “Incremental Term Loan; each Incremental Term Loan is referred to individually as an “Incremental Term Facility” and together with any Revolving Facility Increase, collectively referred to as “Incremental Facilities”, and any such increased Revolving Commitmentsfacility or commitment increase, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableindividually, an “Incremental Facility”)) such that the aggregate amount of the Facilities, together with all such Incremental Facilities, does not exceed at any time $4,000,000,000. Each such notice shall specify the date on which the Borrower proposes that such Incremental Facilities shall be effective, which shall be a date not less than five (5) Business Days (or such lesser number of days as applicable, by executing and delivering the Administrative Agent shall agree) after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent, the Syndication Agent an Additional Credit Extension Amendment specifying (i) and/or their respective Affiliates shall use commercially reasonable efforts, with the amount assistance of such increase and the Facility Borrower, to arrange a syndicate of Lenders or Facilities involved, (ii) other Persons that are Eligible Assignees willing to hold the applicable requested Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, Facility; provided that (x) the amortization schedule for such any Lender approached to provide all or a portion of any Incremental Term Loans Facility may elect or decline, in its sole discretion, to participate in an Incremental Facility, and (y) the Applicable Margin for any Lender or other Person that is an Eligible Assignee to whom any portion of such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than allocated (each, an “Incremental Revolving Lender” or “Incremental Term Loan Lender”, as applicable) shall be subject to the weighted average life to maturity approval of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 Agent (such consent approval not to be unreasonably withheld, delayed withheld or conditioneddelayed), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental a Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving FacilityIncrease, each Borrower Issuing Bank (which approvals shall 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 amount of each Type of Loan of such Borrower (andnot be unreasonably withheld), in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing required by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoSection 9.04(b).
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Invitation Homes Inc.), Revolving Credit and Term Loan Agreement (Invitation Homes Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased increase, the “New Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”, together with the New Revolving Commitments, the “Incremental Revolving Commitments” and any facility under which ”), by up to an aggregate amount not to exceed $1,000,000,000 for all Incremental Commitments. Each such Incremental Term Loans or Incremental Revolving Commitments are made availablenotice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Facility”)Commitments shall be effective, as applicable, by executing and delivering which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent an Additional Credit Extension Amendment specifying and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (ix) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, 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 increase Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Facility Administrative Agent (such approval not to be unreasonably withheld or Facilities involveddelayed), (ii) the applicable Incremental Facility Closing Dateand, (iii) the applicable Borrower(s) and (iv) in the case of Incremental a New Revolving Commitment, each Issuing Bank (each of which approvals shall not be unreasonably withheld), unless such New Revolving Loan Lender or New Term Loans, (w) Loan Lender is an existing Lender. The terms and provisions of any New Revolving Commitments shall be identical to the existing Revolving Commitments; provided that the applicable Incremental Term Maturity Datecommitment fee, (x) upfront and other fees with respect to any New Revolving Commitments shall be determined by the amortization schedule Borrower and the applicable New Revolving Loan Lenders and the applicable arrangement fees with respect to any New Revolving Commitments shall be determined by the Borrower and the applicable arrangers for such Incremental New Revolving Commitments. The terms and provisions of any New Term Loan Commitments and any New Term Loans shall (a) not have any scheduled amortization payments and (yb) share ratably in any prepayments of any existing Term Loan Facility, unless the Applicable Margin for Borrower and the New Term Loan Lenders in respect of such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental New Term Loans elect lesser payments; provided that applicable interest rate margins, arrangement fees, upfront or other fees, original issue discount and Incremental Revolving Commitments, together with amortization (subject to the aggregate principal amount remaining terms of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (xthis proviso) with respect to any Incremental New Term Loan Commitments shall be determined by the Borrower and the applicable New Term Loan Lenders; provided, further, that New Term Loan Commitments may contain (x) additional or more restrictive covenants that are applicable only to periods after the latest Maturity Date of any Term Loans being incurred outstanding or Revolving Commitments in effect immediately prior to finance a Permitted Acquisition or a similar permitted Investment designated by giving effect to such New Term Loan Commitments and (y) other terms that are reasonably acceptable to the Parent Borrower as a “Limited Conditionality Acquisition”Administrative Agent. The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default has occurred shall exist and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (yii) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower recent month for which financial statements have been delivered pursuant to Section 5.01, the Borrower would have been in compliance with the Financial Covenants that are available;
applicable at such time; (Dy) the representations and warranties made or deemed made by the Borrower in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respectsrespects (or, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichany such representation or warranty already qualified by materiality, subject in all respects) on the effective date of such Incremental Commitments except to customary conditions the extent that such representations and warranties expressly relate solely to an earlier date (including no payment in which case such representations and warranties shall have been true and correct in all material respects (or, in the case of any such representation or bankruptcy event warranty already qualified by materiality, in all respects) on and as of default), would either automatically be converted into or required to be exchanged such earlier date) and except for permanent Indebtedness that does not changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (z) the Administrative Agent shall have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect received each of the Collateral with the Term Loans following, in form and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent; provided that : (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments and (B) if applicable, all corporate, partnership, member, or other necessary action taken by each Incremental Term Facility shall share ratably in any mandatory prepayments of Guarantor authorizing the applicable Term Facility unless the Parent Borrower and the lenders in respect Guaranty by such Guarantor of such Incremental Commitments; and (ii) if requested by the Administrative Agent, a customary opinion of counsel to the Borrower and, if applicable, the Guarantors (which may be in substantially the same form as delivered on the Effective Date and may be delivered by internal counsel of the Borrower), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lenders; provided, that, such Lender shall promptly return any existing Notes held by such Lender to the Borrower (or, if lost, destroyed or mutilated, if requested by the Borrower, a lost note affidavit in customary form and including a customary indemnity). On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans 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 will be held by existing Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to its New Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Facility elect lesser payments;
Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (Hi) any Incremental each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the New Term Loans 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 (y) the New Revolving Commitments and the New Revolving Loans Loan Lenders or the New Term Loan Commitments and the New Term Loan Lenders, as applicable, and (z) in respect thereof the case of each notice to Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The upfront fees payable to the New Revolving Loan Lenders and/or New Term Loan Lenders shall be determined by the Borrower and the applicable New Revolving Loan Lenders and/or New Term Loan Lenders. The Incremental Commitments shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by 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. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.04.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Brixmor Operating Partnership LP)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) Representative may from time to time, upon at least ten (10) Business Days’ prior written notice to the Administrative Agent in each case, at any time agree that such Lenders shall makeprior to the Maturity Date, obtain or increase the amount of their Incremental Term Loans or Aggregate Revolving Commitments (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental Revolving Increase”) and/or add one or more tranches of term loans (each an “Incremental Term Facility”); each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower Representative by an agreement in writing entered into by the applicable Borrowers, as applicable, by executing and delivering to the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an Additional Credit Extension Amendment specifying “Incremental Facility Amendment”); provided that:
(i) the sum of the cumulative aggregate original principal amount of such increase and all Incremental Facilities established under this Section 2.01(c) plus the Facility or Facilities involved, (ii) the applicable cumulative aggregate original principal amount of all Alternative Incremental Facility Closing DateIndebtedness incurred under Section 8.03(r) shall not exceed, at the time any such Incremental Facility is established (iii) the applicable Borrower(s) and (iv) in giving effect thereto), as the case of Incremental Term Loansmay be, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
sum of: (A) the aggregate principal amount greater of (1) $275,000,000 and (2) Consolidated EBITDA for the most recently ended period of four fiscal quarters for which the Borrowers have delivered financial statements pursuant to Section 7.01(a) or committed amount(b), if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
plus (B) (x) with respect to any Incremental Term Loans being incurred to finance such additional amount that would not cause the Consolidated Senior Secured Leverage Ratio, calculated on a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and Pro Forma Basis after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any such Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and treating any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that Increase as fully drawn for such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)purpose), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for to be greater than 3.00 to 1.00 (which financial statements are available;
amount under this clause (DB) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than deemed incurred, and the weighted average life Consolidated Senior Secured Leverage Ratio calculated as aforesaid, prior to maturity giving effect to any substantially concurrent incurrence of Incremental Facilities under the Initial Term Facility preceding clause (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of defaultA), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fii) all Incremental Term Loans no Default shall have occurred and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment be continuing, and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement no Default would exist after giving effect to any Incremental Facility, both on the date on which such Additional Credit Extension AmendmentIncremental Facility is requested and on the date on which such Incremental Facility is to become effective;
(I) without the consent of the Administrative Agent, (xiii) each increase effected pursuant to this paragraph Incremental Facility shall be in a minimum amount of at least $50,000,000 20,000,000 and in integral multiples of $5,000,000 in excess thereof (yor such lesser amounts as the Administrative Agent may agree);
(iv) no more than five existing Lender shall be under any obligation to provide any Incremental Facility Closing Dates may Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(v) each Person providing any Incremental Facility Commitment shall be an institution selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender Representative that elects to provide Commitments under qualifies as an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be Eligible Assignee and is reasonably satisfactory acceptable to the Administrative Agent and, in the case of any such institution providing an Incremental Revolving LoansIncrease, the Issuing Lenders L/C Issuer and the Swingline Lender Swing Line Lender;
(vi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (iiB) shall become a Lender documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement pursuant in form and substance acceptable to the Administrative Agent;
(vii) the Administrative Agent shall have received:
(A) a certificate of the applicable Borrowers dated as of the effective date of such Incremental Facility signed by a Responsible Officer of the Borrower Representative (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of each applicable Borrower approving such Incremental Facility, and (2) certifying that, before and after giving effect to such Incremental Facility, (x) the representations and warranties contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) on and as of the date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an Additional Credit Extension Amendment.earlier date, in which case they shall be true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) as of such earlier date, and (y) no Default exists;
(cB) Unless otherwise agreed in the case of an Incremental Term Facility, a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Term Facility the Borrowers are in compliance with the financial covenants in Section 8.11 on a Pro Forma Basis;
(C) such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility;
(D) to the extent requested by the Administrative Agent, on customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Closing Commitment), dated as of the effective date of such Incremental Facility; and
(E) such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(viii) in the case of an Incremental Revolving Increase:
(A) the terms and conditions (including interest rate, interest rate margins, fees (other than arrangement, structuring, underwriting and similar fees not paid generally to all Lenders under such Incremental Revolving Increase), prepayment terms and final maturity) of such Incremental Revolving Increase shall be the same as the terms applicable to the Aggregate Revolving Commitments hereunder;
(B) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving Commitments pursuant to this Section 2.01(c) and to include thereon any Person that becomes a Lender with a Revolving Commitment pursuant to this Section 2.01(c); and
(C) on the effective date of such Incremental Revolving Increase, the existing Lenders with Revolving Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Revolving Increase and such assignments and adjustments, each Revolving Lender (including the Lenders providing such Incremental Revolving Increase) will hold its pro rata share (based on its Applicable Revolving Percentage of the increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans; and
(ix) in the case of an Incremental Term Facility;
(A) the interest rate, interest rate floors, interest rate margins, fees, discount, prepayment premiums, mandatory prepayments, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Borrower Representative and the Lenders providing such Incremental Term Facility; provided that:
(1) the final maturity of such Incremental Term Facility shall not be earlier than the later of (x) the Maturity Date and (y) the final maturity of any other Incremental Term Facility;
(2) the weighted average life to maturity of such Incremental Term Facility shall not be less than the remaining weighted average life to maturity of the Term Loans or any other Incremental Term Facility (in each case, as determined by the Administrative Agent in accordance with customary financial practice); and
(3) unless approved by the Administrative Agent, such Incremental Term Facility is on terms and conditions that are not materially more restrictive than the terms and conditions applicable to the Revolving Commitments, the Term Loans and any other Incremental Term Facility hereunder;
(B) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(C) Schedule 2.01 shall be deemed revised to add the commitments and commitment percentages of the Lenders providing the Incremental Term Facility; and
(D) such Incremental Term Facility shall share ratably in any prepayments of the Term Loans and any other Incremental Term Facilities pursuant to this Agreement (or otherwise provide for more favorable prepayment treatment for the Term Loans and any then outstanding other Incremental Term Facilities) and shall have ratable voting rights with the Term Loans and any other Incremental Term Facilities (or otherwise provide for more favorable voting rights for the Term Loans and any then outstanding other Incremental Term Facilities). The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions 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 security interests created by the Collateral Documents and any guarantees provided with respect to the Revolving FacilityObligations. The Lenders hereby authorize the Administrative Agent to enter into, each Borrower and the Lenders agree that this Agreement and the other Loan Documents shall 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 amount of each Type of Loan of such Borrower (andbe amended by, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended Amendments to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower Representative deem necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.01(c) (including by adding provisions related to voluntary and furnished mandatory prepayments of Incremental Term Loans as deemed appropriate by the parties to any Incremental Facility Amendment). The Administrative Agent shall promptly notify each Lender as to the other parties hereto.
(eeffectiveness of each Incremental Facility Amendment. This Section 2.01(c) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject supersede any provisions in Section 2.13 or 11.01 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. 77
(a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time by written notice to time agree that such Lenders shall make, obtain or the Administrative Agent elect to increase the amount of their Incremental Term Loans or existing Revolving Credit Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Credit Commitments”) and/or incur one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount (1) not to exceed in the aggregate, at the time of incurrence, the greater of (x) $700,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(s) and (y) an amount such that (I) the pro forma Consolidated Leverage Ratio would not exceed 6.50:1.00 and (II) the pro forma Senior Secured Leverage Ratio would not exceed 3.00:1.00 as of the Increased Amount Date, provided, that to the extent the proceeds of any Incremental Term Loans are intended to be applied to finance a Limited Condition Acquisition, pro forma compliance shall be tested in accordance with Section 1.09(c) and (2) not less than, individually, $25,000,000.
(b) Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion); and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement or, if made on terms identical to any facility under which existing Series of Incremental Term Loans, may constitute a part of such Series of Incremental Term Loans. Notwithstanding the foregoing, any Incremental Term Loans may be treated as part of the same Series as any other Incremental Term Loans if such Incremental Term Loans or have identical terms (other than effective yield) and are fungible for United States federal income tax purposes with such other Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Term Loans.
(c) The Administrative Agent an Additional Credit Extension Amendment specifying shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the amount Incremental Revolving Credit Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such increase Series, as applicable and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term each notice to any applicable Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect each case subject to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required assignments contemplated by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)Section.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Such Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Credit Commitments or Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Loan Commitments shall be become effective as of such Increased Amount Date; provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.that:
Appears in 1 contract
Incremental Facilities. The Borrower Representative may by written notice to the Administrative Agent at any time after the Restatement Date elect to request (aA) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time prior to time agree that such Lenders shall makethe Revolving Commitment Termination Date, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” ”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an aggregate amount not to exceed (1) the sum of (x) $1,350,000,000 plus (y) the aggregate amount of all voluntary prepayments of Term Loans and Revolving Loans pursuant to Section 2.13(a) (to the extent, in the case of voluntary prepayments of Revolving Loans, there is an equivalent permanent reduction of the Revolving Commitments pursuant to Section 2.13(b)), plus (z) the aggregate amount of Revolving Commitments of any facility under which Lender that was a Defaulting Lender that have been terminated, plus (2) an additional unlimited amount so long as, after giving pro forma effect to the incurrence of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loans Loan Commitments or Incremental Revolving Commitments), the Senior Secured Net Leverage Ratio would not exceed 3.00:1.00, and, in each case, not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the maximum amount then permitted to be incurred pursuant to clauses (1) and (2) above on such date of determination), 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 Representative proposes that the Incremental Revolving Commitments are made availableor Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental FacilityRevolving Loan Lender” or “Incremental Term Loan Lender”), as applicable) to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, by executing be allocated and delivering to the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Additional Credit Extension Amendment specifying (i) the amount Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such increase and the Facility or Facilities involved, Increased Amount Date; provided that: (ii1) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Incremental Revolving Commitments or (y) otherwiseIncremental Term Loan Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (2) both before and after giving effect to any Additional Credit Extension Amendment (including the making incurrence of any such Incremental Revolving NY\6180200.13 Commitments and/or Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loan Commitments, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 3.02 shall result therefrom;
be satisfied; (C3) the Parent U.S. Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to compliance with each of the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed 6.07 as of the last day of the most recently ended fiscal quarter Fiscal Quarter after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the Parent maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments); (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower for which financial statements are available;
(Dshall make any payments required pursuant to Section 2.18(c) in no event connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall it deliver or cause to be a condition delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent in connection with any such transaction; and (7) the applicable Borrower shall have paid all fees and expenses owing to the effectiveness ofAgents and the Lenders in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments; provided that, or Borrowing under, to the extent the proceeds of any Incremental Facility that any representation Term Loans are being used to finance a Permitted Acquisition or warranty other Investment permitted hereunder, with the consent of any the Borrower Representative and the applicable Incremental Term Loan Party Lender(s), clauses (1) and (2) above shall not apply so long as on the date of the incurrence of such Incremental Term Loans, the Specified Representations shall be true and correct in all material respects, respects as of the date of such incurrence except and solely to the extent required 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 as of such earlier date; (it being understood that to the extent any such representation and warranty is already qualified by the lenders providing materiality or material adverse effect, such Incremental Facility;
(E) the weighted average life to maturity of any representation and warranty will be true and correct in all respects). Any Incremental Term Facility Loans made on an Increased Amount Date shall be no earlier than the weighted average life to maturity designated a separate series (a “Series”) of the Initial Incremental Term Facility (except in the case Loans for all purposes of customary high-yield bridge loans whichthis Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to customary conditions the satisfaction of the foregoing terms and conditions, (including no payment or bankruptcy event a) each of defaultthe Lenders with Revolving Commitments of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than such interests in the Initial Term Facility);
(F) all Incremental Term Loans and any applicable Revolving Loans made outstanding on such Increased Amount Date as shall be necessary in respect order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory after giving effect to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments addition of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become to the Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agentapplicable Class, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an each Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), Revolving Commitment shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental deemed for all purposes a Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, Commitment of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable Class and each Loan made thereunder (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.an NY\6180200.13
Appears in 1 contract
Sources: Credit Agreement (PVH Corp. /De/)
Incremental Facilities. (a) The Parent Subject to Section 2.11(b), the Borrower and/or any Additional Borrower and any may by written notice to Agent elect to request the establishment of one or more Lenders Incremental Term Loan commitments (including New Lenders) may from time to time agree that such Lenders shall makethe “Incremental Term Loan Commitments”), obtain or increase the in an aggregate amount of their up to $70,000,000. Each such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Term Loans Loan Commitments shall be effective, which shall be a date not less than 30 days after the date on which such notice is delivered to the Agent. The opportunity to commit to provide all or Revolving a portion of the Incremental Term Loan Commitment shall be offered by the Borrower to any Eligible Incremental Lenders. To the extent any Eligible Incremental Lenders have provided a commitment to provide such Incremental Term Loan Commitment, the Borrower shall provide a copy of such commitment letter to the Agent for distribution to the existing Lenders and offer the existing Lenders the opportunity to provide such Incremental Term Loan Commitment on the same terms as set forth in such commitment letter (the date the Agent receives such commitment letter, the “Notice Date”). If the existing Lenders have not agreed in writing to provide such Incremental Term Loan Commitment within 15 days of the Notice Date, then the Eligible Incremental Lenders may provide the Incremental Term Loan Commitment on the terms of such commitment letter and subject to this Section 2.11. Any existing Lender approached to provide all or a portion of such Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan Commitment.
(b) Such Incremental Term Loan Commitments shall become effective, as of such Increased Amount Date, subject to the satisfaction of each of the following conditions:
(i) the Lenders have funded 100% of the aggregate amount of the Term Loan B Commitments of the Lenders;
(ii) the Agent has obtained the commitment of one or more Incremental Term Loan Lenders to provide the applicable Incremental Term Loan and any such increased Revolving CommitmentsIncremental Term Loan Lenders, “Incremental Revolving Commitments” the Borrower and any facility under the Agent have signed an amendment to this Agreement pursuant to which such Incremental Term Loans or Incremental Revolving Commitments are made availableLoan Lenders agree to make, subject to the terms of this Agreement, a term loan to the Borrower (an “Incremental FacilityTerm Loan”) in an amount equal to its Incremental Term Loan Commitment and to otherwise evidence such Incremental Term Loan, in form and substance reasonably satisfactory to the Agent (each, a ”Joinder Agreement”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, ;
(iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing shall exist on such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Increased Amount Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Civ) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans representations and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as warranties of the last day of Credit Parties contained in this Agreement and the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event other Loan Documents shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respectsrespects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, except which representations and solely warranties shall be true and correct in all respects subject to such qualification) as of such Increased Amount Date to the same extent required by the lenders providing such Incremental Facility;
as though made on and as of that date (E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans both before and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement immediately after giving effect to such Additional Credit Extension Amendment;
Loan), 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 (I) without except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the consent of the Administrative Agenttext thereof, (x) each increase effected pursuant to this paragraph which representations and warranties shall be true and correct in a minimum amount all respects subject to such qualification) on and as of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Datesuch earlier date; and
(Jv) no Lender the Borrower shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
reached agreement with the lenders making the Incremental Term Loan (bthe “Incremental Term Loan Lenders”) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facilityinterest margins applicable to such Incremental Term Loan (which interest margins may be higher than, each Borrower shall borrow Revolving Loans under equal to, or lower than the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference interest margins applicable to the amount Term Loan set forth in this Agreement immediately prior to the date of each Type of Loan the making of such Borrower (and, in the case of Eurocurrency Loans or Incremental Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark TrancheLoan, as applicable) which would then and shall have been outstanding from communicated the amount of such Lender interest margins to the Agent. Anything to the contrary contained herein notwithstanding, if the all in yield (iincluding interest margins, interest floors, original issue discount, closing fees or other similar yield related discounts based on an assumed four-year to life maturity, but excluding any arrangement, underwriting or similar fees that are not shared with all of the Lenders or prospective lenders) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on (the “All In Yield”) that is to be applicable to such Incremental Facility Closing Date and (ii) Term Loan is 50 basis points or more higher than the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then All In Yield applicable to the Eurocurrency Term Loans or Adjusted hereunder immediately prior to the applicable Increased Amount Date (the amount by which the interest margins are higher, the “Excess”), then the All In Yield applicable to each applicable Class of Term SOFR Rate for Term Benchmark Loans, as applicable, Loans immediately prior to the Increased Amount Date shall be increased by the amount of the other Lenders in Excess minus 50 basis points, effective on the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Increased Amount Date, this Agreement shall be amended to and without the extent (but only to the extent) necessary to reflect the existence and terms necessity of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing any action by the Administrative Agent and the Parent Borrower and furnished to the other parties any party hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
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Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may, on no more than five occasions, by written notice to the Administrative Agent, request (i) one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase increases in the amount of their Incremental Term Loans or the Revolving Commitments of any Class (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Commitment Increase”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term LoansCommitments (which may be in the form of increases to any existing Term Loans or new Term Loan tranches), (w) in each case in a minimum amount of $5,000,000, provided that the applicable aggregate amount of all the Incremental Revolving Commitment Increases and Incremental Term Maturity Date, (x) Commitments to be established hereunder on any date shall not exceed the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
sum of (A) the aggregate principal amount (or committed amount, if applicable) Incremental Base Amount as of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
such date plus (B) (x) with respect to any assuming that the full amount of such Incremental Revolving Commitment Increases and/or such Incremental Term Commitments have been funded as Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”on such date, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisitionan additional aggregate amount, merger or similar agreement governing such acquisition or (y) otherwisethat, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making establishment of any Incremental Revolving Commitment Increases and/or Incremental Term Loans Commitments and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting use of proceeds thereof and any Permitted Acquisition made with thereof, the proceeds thereof)), with the financial covenants set forth Borrower shall be in Section 7.1pro forma compliance, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower Test Period for which financial statements are available;
have been delivered pursuant to Section 5.01(a) or 5.01(b) (D) in no event shall it be a condition or, prior to the effectiveness ofdelivery of any such financial statements, the last day of the last fiscal quarter included in the Latest Financial Statements), with a Total Leverage Ratio that is no greater than 3.50:1.00; provided further that the Borrower may elect to use clause (B) above (in whole or in part) prior to using all or a portion of clause (A), or Borrowing undercombine the use of clauses (A) and (B), and, if clauses (A) and (B) are available at the time of such incurrence and the Borrower does not make an election, the Borrower will be deemed to have elected to use clause (B) first. Each such notice shall specify (1) the date on which the Borrower proposes that the Incremental Revolving Commitment Increases or the Incremental Term Commitments, as applicable, shall be effective, and (2) the amount of the Incremental Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Facility that any representation Revolving Commitment Increase or warranty of any Loan Party be true and correct Incremental Term Commitment may elect or decline, in all material respectsits sole discretion, except and solely to the extent required by the lenders providing provide such Incremental Facility;
Revolving Commitment Increase or Incremental Term Commitments, (Ey) the weighted average life Borrower shall not be required to maturity approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the Borrower proposes to become a Lender under any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment Commitment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Commitment Increase, if such Person that is not then a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Lender, all terms of any Incremental Term Facilitymust be an Eligible Assignee and, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent Agent would be required for an assignment of such Loans or Commitments pursuant Commitment to Section 10.6 (such consent not to be unreasonably withheldLender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Commitment Increase, if any consent of each Issuing Bank would be required for an assignment of Revolving Loans or a Revolving Commitment to such Lender, each Issuing Bank).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that any interest margins, commitment fees, pricing and rate floors applicable to any Incremental Revolving Commitment Increase may exceed the Issuing interest margins, commitment fees, pricing and rate floors payable with respect to the Revolving Loans and/or Revolving Commitments pursuant to the terms of this Agreement, as amended through the date of such calculation, in which case the Applicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case as in effect for the other Revolving Loans and Revolving Commitments, shall be automatically increased to eliminate such excess (it being understood that additional upfront or similar fees may be payable to the Lenders participating in such Incremental Revolving Commitment Increase without any requirement to pay such amounts to any existing Revolving Lenders). The terms and conditions of any Incremental Term Commitments and the Swingline Lender Incremental Term Loans to be made thereunder shall be set forth in the applicable Incremental Facility Agreement; provided that (A) no Incremental Term Loan Maturity Date shall be earlier than the latest Maturity Date then in effect, (B) the scheduled amortization and optional or mandatory prepayment terms and provisions, including in respect of the allocations of payments to or within any such Class of any such Incremental Term Loans shall be based on current market terms at the time of incurrence thereof, (C) no Incremental Term Loan shall be secured, and (iiD) any other terms shall become be as agreed between the Borrower and the lenders providing such Incremental Term Loans; provided that no Incremental Term Loan shall be subject to a Lender under restrictive covenant not previously provided for in this Agreement unless this Agreement is amended to include such restrictive covenant for the benefit of all Lenders. Any Incremental Term Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) Unless otherwise agreed The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Term Commitments or Incremental Revolving Commitment Increase, as the case may be, and the Administrative Agent, on each ; provided that no Incremental Facility Closing Date with respect to the Term Commitments or Incremental Revolving Facility, each Borrower Commitment Increases shall 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 amount of each Type of Loan of such Borrower become effective unless (andsubject, in the case of Eurocurrency Loans or Incremental Term Benchmark LoansCommitments incurred to finance a Limited Condition Transaction, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if to Section 1.08): (i) each no Event of Default (or in the case of Incremental Term Commitments incurred to finance a Limited Condition Transaction, no Event of Default described in clause (a), (b), (i) or (j) of Section 7.01) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Type, Eurocurrency Tranche Incremental Term Commitments or Term Benchmark Tranche had been borrowed or effected by such Borrower Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.date;
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Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions after the Closing Date, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Commitments; provided that the aggregate amount of the Incremental Commitments established under this Section 2.21 on any date, together with the aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) on such date, shall not exceed an “amount equal to the Base Incremental Facility”)Amount in effect on such date, and an additional amount subject to the Maximum Incremental Amount as of such date. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Facility or Facilities involvedCompany proposes to become an Incremental Lender, (ii1) the applicable Incremental Facility Closing Dateif such Person is not then a Lender, (iii) the applicable Borrower(s) must be an Eligible Assignee and (iv2) in the case of an Incremental Revolving Commitment, must be reasonably satisfactory to the Administrative Agent, 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, except as otherwise set forth herein, 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; provided that the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Company and the Incremental Revolving Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term LoansFacility and the Incremental Term Loans to be made thereunder shall be, (w) except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the Term Maturity Date, (x) B-1 Commitments or Term B-2 Commitments and the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental related Term Loans; provided, that:
provided that (Ai) the aggregate principal amount (or committed amountupfront fees, if applicable) of all Incremental Term Loans interest rates and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect amortization schedule applicable to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred Facility and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to determined by the applicable Additional Credit Extension Amendment (including Company and the making of any Incremental Term Loans and any Lenders providing the relevant Incremental Revolving Commitments thereunder Term Commitments, (and assuming, ii) except in the case of any Additional Credit Extension Amendment with respect an Incremental Term Facility effected as an increase to Incremental Revolving Commitments that such commitments are fully drawn) without the netting an existing Class of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))Term Loans, with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the weighted average life to maturity of the Initial Term Facility Loans with the latest Maturity Date (except in calculated based on the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity of such Term Loans as of the date of funding thereof (giving effect to any amendments thereto)), (iii) if the weighted average yield relating to any Incremental Term Loan exceeds the weighted average yield relating to any Class of Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (to be determined by the Initial Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase in the interest rate floor applicable to such Class of Term FacilityLoans would result in an increase in an interest rate then in effect for such Class of Term Loans hereunder);
(F) all ), then the Applicable Rate relating to such Class of Term Loans shall be adjusted so that the weighted average yield relating to such Incremental Term Loans and shall not exceed the weighted average yield relating to such Class of Term Loans by more than 0.50%; provided that, with respect to any Revolving Loans made in respect Series of Incremental Revolving Commitments Term Loans (the "Declining Series"), the benefit of this clause (iii) shall rank pari passu in right not apply with respect to the incurrence of payment and right of security other Incremental Term Loans if the applicable Incremental Facility Amendment in respect of the Declining Series so provides and (iv) no Incremental Term Maturity Date shall be earlier than the Term Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a "Series") of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Term Loans Liens on the Collateral securing the other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company, the Borrowing Subsidiaries (G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(athe case of Incremental Revolving Facilities), all terms of any each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph effective unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment no Default or Event of such Loans or Commitments pursuant to Section 10.6 Default (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andor, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving LoansFacility, no Event of Default under clause (a), (b), (h) or (i) of Article VII) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the Issuing Lenders representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Swingline Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such 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) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary's certificates, officer's certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.21.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a "Lender" (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall become constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender under this Agreement pursuant and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term "Revolving Commitment". For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Additional Credit Extension Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cg) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e).
Appears in 1 contract
Sources: Refinancing Facility Agreement (Minerals Technologies Inc)
Incremental Facilities. (a) The Parent Borrower and/or At any Additional Borrower time during the term of this Agreement, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and any one or more Lenders the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (including New Lenders) may from time to time agree that each such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityIncrease”), as applicable, by executing and delivering . Agent shall invite each Lender to the Administrative Agent an Additional Credit Extension Amendment specifying increase its Revolver Commitments (i) the amount of such it being understood that no Lender shall be obligated to increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (ivits Revolver Commitments) in connection with a proposed Increase at the case of Incremental Term Loansinterest margin proposed by ▇▇▇▇▇▇▇▇▇, (w) the applicable Incremental Term Maturity Dateand if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, (x) the amortization schedule for such Incremental Term Loans then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together Borrowers to become a Lender in connection with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower proposed Increase. Any Increase shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum an amount of at least $50,000,000 and (y) integral multiples of $50,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than five Incremental Facility Closing Dates may be selected by four occasions in the Parent Borrower after aggregate for all such Increases. Additionally, for the Closing Date; and
(J) avoidance of doubt, it is understood and agreed that in no Lender event shall have any obligation the aggregate amount of the Increases to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionthe Revolver Commitments exceed $500,000,000.
(b) Any New Lender that elects Each of the following shall be conditions precedent to provide any Increase of the Revolver Commitments under an Incremental Facility and the Maximum Revolver Amount in connection therewith:
(i) to Agent or Borrowers have obtained the extent such consent would be required for an assignment commitment of such Loans one or Commitments pursuant to Section 10.6 more Lenders (such consent not to be unreasonably withheld, delayed or conditioned), shall be other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the Administrative applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent andhave signed a joinder agreement to this Agreement (an “Increase Joinder”), in the case of any Incremental Revolving Loansform and substance reasonably satisfactory to Agent, the Issuing to which such Lenders (or prospective lenders), Borrowers, and the Swingline Lender and Agent are party,
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall become deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of Governors,
(iv) Borrowers have delivered to Agent updated pro forma Projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries demonstrating compliance on a Lender under this Agreement pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of the applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and
(v) The interest rate margins with respect to the Revolving Loans to be made pursuant to an Additional Credit Extension Amendmentthe increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the applicable Increase Date (as defined below).
(c) Unless otherwise agreed by the Administrative Agentspecifically provided herein, on each Incremental Facility Closing Date with respect all references in this Agreement and any other Loan Document to the Revolving Facility, each Borrower shall borrow Revolving Loans under shall be deemed, unless the relevant increased context otherwise requires, to include Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed made pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable increased Revolver Commitments and Maximum Revolver Amount pursuant to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.14.
(d) Notwithstanding anything Each of the Lenders having a Revolver Commitment prior to the contrary Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in this Agreement, each the Revolving Loans and participation interests in Letters of the parties hereto hereby agrees Credit on such Increase Date as shall be necessary in order that, on each Incremental Facility Closing Dateafter giving effect to all such assignments and purchases, this Agreement shall such Revolving Loans and participation interests in Letters of Credit will be amended held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoincreased Revolver Commitments.
(e) The Closing Date Incremental Revolving Commitments Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be provided on entitled to all the Closing Date as Incremental Revolving Commitmentsbenefits afforded by, subject this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving establishment of any such new Revolver Commitments and without any further amendment to this AgreementMaximum Revolver Amount.
Appears in 1 contract
Sources: Credit Agreement (V F Corp)
Incremental Facilities. (a) The Parent Borrower and/or Company or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall (i) make, obtain or increase the amount of their Incremental Term Loans or (ii) during the Revolving Commitments (any such increased Availability Period, make, obtain or increase the amount of their Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Increased Facility Closing Date, Date and (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (wx) the applicable Incremental Term Maturity Date, which shall not be prior to the Initial Term Loan Maturity Date, (xy) the amortization schedule for such Incremental Term Loans Loans, which shall comply with Section 2.03, and (yz) the Applicable Margin Rate for such Incremental Term Loans; provided, that:
(A) , prior to the aggregate principal amount (or committed amounttwelve month anniversary of the Closing Date, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with all-in yield in respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) exceeds the Parent Borrower shall be all-in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to yield for the applicable Additional Credit Extension Amendment (including the making of any Incremental Initial Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition immediately prior to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
Loans by more than 0.50% (H) any Incremental Revolving Commitments and to be determined by the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors), then the Applicable Rate relating to the Initial Term Loans shall be adjusted so that the all-in yield relating to such Additional Credit Extension Amendment;
Incremental Term Loans shall not exceed the all- in yield relating to the Initial Term Loans by more than 0.50%. Notwithstanding the foregoing, (Ii) without the consent of the Administrative AgentRequired Lenders, the sum of (x) the aggregate principal amount of the Incremental Facilities incurred pursuant to this Section 2.24, and (y) the aggregate outstanding principal amount of Incremental Equivalent Debt incurred in reliance on Section 7.03(s) shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Available Incremental Amount at such time, (xii) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 20,000,000 (or the Dollar Equivalent thereof) and (yiii) no more than five Incremental three Increased Facility Closing Dates may be selected by the Parent Borrower Borrowers after the Closing Date; and
(J) no . 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 New Lender that additional bank, financial institution or other entity which, with the consent of the applicable Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to provide Commitments become a “Lender” under this Agreement in connection with an Incremental Facility (i) pursuant to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to transactions described in Section 10.6 2.24(a) shall execute a New Lender Supplement (such consent not to be unreasonably withheldeach, delayed or conditioneda “New Lender Supplement”), shall be reasonably satisfactory to the Administrative Agent and, substantially in the case form of any Incremental Revolving LoansExhibit F-3, the Issuing Lenders and the Swingline Lender and whereupon such bank, financial institution or other entity (iia “New Lender”) shall become a Lender under 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 pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to the Revolving Facility, each Borrower the Borrowers shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase Incremental Revolving Commitment in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Rate Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Type or Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (Type or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Increased Facility Closing Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments Facilities evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent and with the Parent Borrower Company’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(e) The Closing Date . Each Incremental Revolving Commitments Facility and all extensions of credit thereunder shall be provided secured by the Collateral on a pari passu basis with the Liens on the Closing Date as Incremental Revolving Commitments, subject to Collateral securing the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementother Obligations.
Appears in 1 contract
Incremental Facilities. (a) The Parent At any time during the Revolving Commitment Period, the Borrower and/or any Additional Borrower and any one or more Lenders may request (including New Lendersbut subject to the conditions set forth in clause (b) may from time to time agree that such Lenders shall make, obtain or increase below) (x) the amount of their Incremental Term Loans or Revolving Commitments be increased by an amount not to exceed the Available Incremental Amount (any each such increased increase, an “Revolving Commitments, “Incremental Revolving Commitments” and any Commitment Increase”) and/or (y) the Lenders establish an incremental term loan facility under which this Agreement in an aggregate principal amount not to exceed the Available Incremental Amount (each such Incremental Term Loans or Incremental Revolving Commitments are made availablefacility, an “Incremental Term Facility” and, together with any Revolving Commitment Increase, the “Incremental Facilities”). No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of at least $5,000,000 (or, as applicableif the Available Incremental Amount is less than $5,000,000, by executing such remaining Available Incremental Amount) and delivering integral multiples of $500,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental Facility exceed the Available Incremental Amount during the term of the Agreement.
(b) Each of the following shall be conditions precedent to the Administrative Agent an Additional Credit Extension Amendment specifying effectiveness of any Incremental Facility:
(i) the amount Borrower shall have delivered an irrevocable written request for such Incremental Facility at least ten (10) Business Days prior to the requested effective date of such increase Incremental Facility, and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Revolving Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in such Increase in an amount that is less than its Revolving Percentage of such requested Increase or Facilities involvedmore than Revolving Percentage of such requested Incremental Facility if other Lenders have elected not participate in any applicable requested Incremental Facility) and to the extent, five (5) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility;
(ii) each Lender agreeing to participate in any such Incremental Facility, the applicable Borrower and the Administrative Agent have signed an Incremental Facility Closing DateJoinder (any Incremental Joinder may, with the consent of the Administrative Agent, the Borrower and the Lenders agreeing to such Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.12) and the Borrower shall have executed any Notes requested by any Lender in connection with the incurrence of the Incremental Facility. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to fund such Incremental Facility;
(iii) each of the applicable Borrower(s) and conditions precedent set forth in Section 5.2 are satisfied with respect to such Incremental Facility;
(iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for after giving pro forma effect to such Incremental Term Loans Facility and (y) the Applicable Margin for such Incremental Term Loans; provideduse of proceeds thereof, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has shall have occurred and is be continuing as at the time of the date incurrence of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date(or, immediately prior to in the event the Borrower has made an LCT Election, and after giving effect to any Additional Credit Extension Amendment (including the making of any Lenders providing such Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Facility have so agreed, no Default or Event of Default has shall have occurred and is be continuing under Section 8.1(a) or shall result therefrom;
(Cf) at the time of the incurrence of such Incremental Facility) and (B) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made compliance with the proceeds thereof)), with the then applicable financial covenants set forth in Section 7.1, recomputed 7.1 hereof as of the last day end of the most recently ended fiscal quarter of the Parent Borrower period for which financial statements are availablerequired to be delivered prior to the incurrence of such Incremental Facility, regardless of whether any financial covenant is being tested at such time (or, in the event the Borrower has made an LCT Election, and the Lenders providing such Incremental Facility have so agreed, the Borrower shall be in compliance with the then-applicable financial covenants set forth in Section 7.1 hereof as of the date of executing the definitive documentation with respect to such Limited Condition Transaction), and the Borrower shall have delivered to the Administrative Agent a Compliance Certificate evidencing compliance with the requirements of this clause (iv);
(Dv) upon the incurrence of any Revolving Commitment Increase in accordance with this Section 2.12, all outstanding Loans, participations hereunder in Letters of Credit held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in no event shall it be a condition accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required procedures reasonably determined by the lenders providing such Incremental FacilityAdministrative Agent in consultation with the Borrower;
(Evi) any such Revolving Commitment Increase shall be on the same terms (including the pricing, and maturity date), as applicable, as, and pursuant to documentation applicable to, the Revolving Facility then in effect;
(vii) any such Incremental Term Facility shall have a maturity date not earlier than the Revolving Termination Date and the weighted average life to maturity of any such Incremental Term Facility shall be no earlier later than that applicable to the then-existing Facilities;
(viii) with respect to any Incremental Facility incurred prior to the 18 month anniversary of the Closing Date, the all-in yield (excluding arrangement, commitment, structuring and underwriting fees) applicable to such Incremental Facility shall not be more than 0.50% per annum higher than the weighted average life corresponding all-in yield with respect to maturity the then-existing Facilities unless the Applicable Margin with respect to the then-existing Facilities is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Facility and the all-in year applicable to the then-existing Facilities minus 0.50%; and
(ix) all fees, if any, required to be paid in connection with such Incremental Facility shall have been paid.
(c) Upon the effectiveness of the Initial Term Facility any Incremental Facility, (except i) in the case of customary high-yield bridge loans whicha Revolving Commitment Increase, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fx) all Incremental Term Loans references in this Agreement and any Revolving Loans made in respect of Incremental other Loan Document to the Revolving Commitments shall rank pari passu be deemed, unless the context otherwise requires, to include such Revolving Commitment Increase advanced pursuant to this Section 2.12 and (y) all references in right of payment this Agreement and right of security in respect of the Collateral with the Term Loans and any other Loan Document to the Revolving Loans and none of the obligors or guarantors with respect thereto Commitment shall be a Person that is not a Loan Party;
(G) except with respect deemed, unless the context otherwise requires, to pricing and fees or as otherwise set forth in include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.25(a), all terms 2.12 and (ii) in the case of any an Incremental Term Facility, if not consistent with all references in this Agreement and any other Loan Document to the applicable existing Term Facility, Loans and/or Lenders shall be determined between deemed, unless the Parent Borrower and context otherwise requires, to include the lenders for term loans incurred pursuant to such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)thereunder.
(d) Notwithstanding anything The Incremental Facilities established pursuant to this Section 2.12 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 any guarantees and the security interests created by the Loan Documents. The Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the contrary in this Agreement, each establishment of the parties hereto hereby agrees that, on each any such Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoFacility.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Carbonite Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions after the Closing Date, by written notice to the Administrative Agent, request (including New Lendersi) may from time during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that the aggregate amount of the Incremental Commitments established under this Section 2.21 on any date, together with the aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) on such date, shall not exceed an amount equal to time agree that (a) the Base Incremental Amount in effect on such Lenders shall makedate, obtain or increase plus (b) the amount of their Incremental voluntary prepayments of Term Loans or Revolving pursuant to Section 2.11(a) (other than those financed with the proceeds of Indebtedness) prior to such date (less the aggregate amount of Incremental Commitments and Alternative Incremental Facility Indebtedness established prior to such date in reliance on this amount), plus (any c) an additional amount subject to the Maximum Incremental Ratio Amount as of such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under date. Each such notice shall specify (A) the date on which such Incremental Term Loans or the Company proposes that the Incremental Revolving Commitments are made available, an “or the Incremental Facility”)Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Facility or Facilities involvedCompany proposes to become an Incremental Lender, (ii1) the applicable Incremental Facility Closing Dateif such Person is not then a Lender, (iii) the applicable Borrower(s) must be an Eligible Assignee and (iv2) in the case of an Incremental Revolving Commitment, must be reasonably satisfactory to the Administrative Agent, 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, except as otherwise set forth herein, 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; provided that the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Company and the Incremental Revolving Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term LoansFacility of a Class and the Incremental Term Loans to be made thereunder shall be, (w) except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the Term Maturity Date, Commitments and the Term Loans of such Class; provided that (xi) the upfront fees, interest rates and floors and, subject to the other restrictions below, amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect applicable to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred Facility and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to determined by the applicable Additional Credit Extension Amendment (including Company and the making of any Incremental Term Loans and any Lenders providing the relevant Incremental Revolving Commitments thereunder Term Commitments, (and assuming, ii) except in the case of any Additional Credit Extension Amendment with respect an Incremental Term Facility effected as an increase to Incremental Revolving Commitments that such commitments are fully drawn) without the netting an existing Class of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))Term Loans, with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans that are “term A loans” shall be no earlier shorter than the remaining weighted average life to maturity of the Terms Loans that are “term A loans” with the latest Maturity Date and the weighted average life to maturity of any Incremental Term Loans that are “term B loans” shall be no shorter than the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter remaining weighted average life to maturity than of the Terms Loans that are “term B loans” with the latest Maturity Date, (iii) if the all-in yield relating to any Incremental Term Loan that is a “term B loan” exceeds the all-in yield relating to the Initial Term FacilityB Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase or decrease, as applicable, in the interest rate floor applicable to the Initial Term B Loans would result in an increase or decrease, as applicable, in an interest rate then in effect for the Initial Term B Loans hereunder);
(F) all ), then the Applicable Rate relating to the Initial Term B Loans shall be adjusted so that the all-in yield relating to such Incremental Term Loans shall not exceed the all-in yield relating to the Initial Term B Loans by more than 0.50% and (iv) no Incremental Term Maturity Date relating to “term A loans” shall be earlier than the Term A Maturity Date and no Incremental Term Maturity Date relating to “term B loans” shall be earlier than the Term B Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Revolving Incremental Term Loans made in respect thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall rank be secured by the Collateral on a pari passu in right of payment and right of security in respect of basis with the Liens on the Collateral with securing the Term Loans other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
(G) except with respect effected pursuant to pricing one or more Incremental Facility Amendments executed and fees or as otherwise set forth in this Section 2.25(a), all terms of any delivered by the Company and each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph effective unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 no Default (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andor, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving LoansFacility, no Event of Default under clause (a), (b), (h) or (i) of Article VII) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the Issuing Lenders representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Swingline Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such 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) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.21 (including, without limitation, favorable amendments to any existing Class to ensure fungibility between any Incremental Commitments (or loans thereunder) and such existing Class).
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall become constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender under this Agreement pursuant and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Additional Credit Extension Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cg) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower and any time, on one or more Lenders (including New Lenders) may from time occasions pursuant to time agree that such Lenders shall make, obtain or an Incremental Facility Amendment increase the aggregate amount of their Incremental Term Loans Commitments of any existing Class of Commitments or Revolving establish a new Class of Commitments (any such increased increase or new Class of Commitments, an “Incremental Revolving CommitmentsFacility” and the loans thereunder, “Incremental Revolving CommitmentsLoans”) in an aggregate principal amount not to exceed $50,000,000; provided that any new Class of Commitments shall be a “last-out” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility that ranks junior in right of payment and/or security to this ABL Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, further, that:
(Ai) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, Loans shall not exceed the Incremental Capbe available in Dollars only;
(ii) unless the Administrative Agent otherwise agrees, no Incremental Revolving Facility may be less than $5,000,000;
(iii) except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such Incremental Revolving Commitment shall be within the sole and absolute discretion of such Lender;
(iv) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as an Incremental Revolving Lender;
(v) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to this ABL Facility, except (A) with respect to structuring, commitment and arranger fees or other similar fees that may be agreed to among the Borrower and the Incremental Revolving Lenders and (B) (x) with respect to any “last-out” Incremental Term Loans being incurred Revolving Facility that ranks junior in right of payment and/or security to finance a Permitted Acquisition or a similar permitted Investment designated by this ABL Facility, such Incremental Revolving Facility (x) shall be on terms (other than those described in clauses (y) and (z) below) reasonably satisfactory to the Parent Borrower as Administrative Agent and subject to customary terms and conditions for “last-out” asset based credit facilities, (y) may have interest rate margins, unused line fees, a “Limited Conditionality Acquisition”, LIBOR floor” and/or “ABR floor” and other economic terms that are agreed to among the Borrower and the Incremental Revolving Lenders and (z) shall have a later scheduled maturity date than the Final Maturity Date;
(vi) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, shall exist immediately prior to and or after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or such Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Evii) the weighted average life to final maturity of any Incremental Term Revolving Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);Final Maturity Date; and
(Fviii) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall Facility may rank pari passu or junior in right of payment and right of security pari passu or junior in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except priority with respect to pricing and fees or proceeds of Revolving Credit Collateral (as otherwise set forth defined in this Section 2.25(athe Intercreditor Agreement), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent, any Letter of Credit Issuer and the Swingline Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 shall have consented (such consent not to be unreasonably withheld, delayed or conditioned), ) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.04(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Incremental Revolving Lender providing a portion of any Incremental Revolving Commitment shall be reasonably satisfactory execute and deliver to the Administrative Agent andand the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, (i) each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement, (ii) all Incremental Revolving Commitments shall become Commitments for all purposes in connection with this Agreement and (iii) all Incremental Revolving Loans shall become U.S. Loans for all purposes in connection with this Agreement.
(d) As conditions precedent to the case effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Issuing Lenders and the Swingline Lender and Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall become have received, from each Additional Revolving Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Additional Revolving Lender, and (iii) the Administrative Agent shall have received a Lender under this Agreement pursuant certificate of the applicable Borrowers signed by Responsible Officers thereof:
(1) certifying and attaching a copy of the resolutions adopted by the governing body or Board of Directors of the applicable Borrowers approving or consenting to an Additional Credit Extension Amendmentsuch Incremental Revolving Facility or Incremental Revolving Loans, and
(2) to the extent applicable, certifying that the condition set forth in clause (a)(vi) above has been satisfied.
(ci) Unless otherwise agreed by Upon the Administrative Agent, on each implementation of any Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower then-existing Lender will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such existing Lender’s participations hereunder in outstanding Letters of Credit or Swingline Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in Letters of Credit or Swingline Loans shall borrow Revolving Loans under be held ratably on the relevant increased Revolving basis of their respective Commitments from each Lender participating of the applicable Class (after giving effect to any increase in the relevant increase in an amount determined by reference Commitment pursuant to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicablethis Section 2.23) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount existing Lenders of the applicable Class shall assign Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Loans, in each case, to the extent necessary so that all of the Lenders of such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by Class participate in each outstanding borrowing of Loans pro rata on the basis of their respective Commitments of such Borrower had been proportionately increased. The Eurocurrency Rate applicable Class (after giving effect to any Eurocurrency Loan or Adjusted Term SOFR Rate for increase in the Commitment pursuant to this Section 2.23); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (e).
(f) On the date of effectiveness of any Term Benchmark LoanIncremental Revolving Facility, the Letter of Credit Sublimit and the Swingline Sublimit permitted hereunder shall increase by an amount, if any, agreed upon by the (i) Administrative Agent, (ii) the Letter of Credit Issuer and the Swingline Lender, as applicable, borrowed pursuant to and (iii) the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)Borrower.
(dg) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and any other amendments to this Agreement and the other Credit Documents as may be necessary in order to establish new Classes in respect of Loans or Commitments increased or extended pursuant to this Section 2.23 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes, in each case on terms consistent with this Section 2.23.
(h) Notwithstanding anything to the contrary in this AgreementSection 2.23 or in any other provision of any Credit Document, each if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance a Permitted Acquisition and the parties hereto hereby agrees thatIncremental Revolving Lenders so agree, on each Incremental Facility Closing Date, this Agreement the availability thereof shall be amended subject to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans customary “SunGard” or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto“certain funds” conditionality.
(ei) The Closing Date Incremental Revolving Commitments This Section 2.23 shall be provided on the Closing Date as Incremental Revolving Commitments, subject supersede any provision in Section 2.16 or 9.08 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term LoansCommitments; provided that, at the time of (wand after giving effect to) the applicable establishment of any Incremental Revolving Commitments or Incremental Term Maturity DateCommitments, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans Revolving Commitments and Incremental Revolving CommitmentsTerm Commitments established pursuant to this Section 2.21, together with the aggregate principal amount of any Permitted all Incremental Equivalent DebtDebt previously (or substantially simultaneously) incurred pursuant to Section 6.01(a)(xxi), shall not exceed the Incremental Cap;
greater of (A) $300,000,000 and (B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”an amount such that, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the making of such Incremental Revolving Commitments (and assuming any Additional Credit Extension Amendment (including such Incremental Revolving Commitments are fully drawn) and Incremental Term Loans and the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)other Indebtedness 509265-1724-13879091 incurred substantially simultaneously therewith, no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in complianceSenior Secured Net Leverage Ratio, as of any Incremental Facility Activation Date, calculated on a pro forma basis basis, is no greater than 2.50 to 1.00. Each such notice shall specify (including giving pro forma effect to A) the applicable Additional Credit Extension Amendment (including date on which the making of any Incremental Term Loans and any Parent Borrower proposes that the Incremental Revolving Commitments thereunder (and assuming, in or the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Commitments, as applicable, shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whicheffective, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto which shall be a Person that is date not a Loan Party;
less than 10 Business Days (G) except with respect or such shorter period as may be agreed to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to by the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of ) after the applicable Term Facility unless the Parent Borrower and the lenders in respect of date on which such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant notice is delivered to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) each increase effected pursuant any Lender approached to this paragraph shall be provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in a minimum amount of at least $50,000,000 its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) no more than five Incremental Facility Closing Dates may be selected by any Person that the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation proposes to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under become an Incremental Facility (i) to the extent Lender, if such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent Person is not to be unreasonably withheldthen a Lender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, the Issuing Lenders Bank and the Swingline Lender Lender) and (C) in the case of any Incremental Term Commitments, whether the loans in respect thereof shall be Incremental Term A Loans or Incremental Term B Loans.
(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. The terms and conditions of any Incremental Term A Commitments and the Incremental Term A Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Tranche A Term Commitments and the Tranche A Term Loans and the terms and conditions of any Incremental Term B Commitments and the Incremental Term B Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Tranche B Term Commitments and the Tranche B Term Loans; provided that (i) the interest rate margins with respect to any Incremental Term Loans shall be as agreed by the Borrower and the lenders in respect thereof, provided that if the Weighted Average Yield applicable to any Incremental Term Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B Term Loans (such excess, the “Excess Spread”), then (A) the Applicable Rate (or LIBO or Alternate Base Rate floor, if such excess was in respect of an increased LIBO or Alternate Base Rate floor) then in effect for Tranche A Term Loans shall automatically be increased by the Excess Spread and (B) the Applicable Rate (or LIBO or Alternate Base Rate floor, if such excess was in respect of an increased LIBO or Alternate Base Rate floor) then in effect for Tranche B Term Loans shall automatically be increased to eliminate such excess, (ii) any Incremental Term A Loan shall become have terms, in Parent Borrower’s reasonable judgment, customary for a Lender tranche A term loan under then-existing market convention and any Incremental Term B Loan shall have terms, in Parent Borrower’s reasonable judgment, customary for a tranche B term loan under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule with respect to any Incremental Term Loans shall be as agreed by the Borrower and the lenders in respect thereof, provided that the weighted average life to maturity of any Incremental Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche A Terms Loans and the weighted average life to maturity of any Incremental Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche B Term Loans, (iv) no Incremental Term Maturity Date with respect to (A) Incremental Term A Loans shall be earlier than the later of (1) the Tranche A Maturity Date and (2) the Latest Maturity Date then in effect with respect to Extended Tranche A Term Loans and (B) Incremental Term B Loans shall be earlier than the later of (1) the Tranche B Maturity Date and (2) the Latest Maturity Date then in effect with respect to Extended Tranche B Term Loans, (v) except as set forth above, the Incremental Term A Loans shall be treated no more favorably than the Tranche A Term Loans and the Incremental Term B Loans shall be treated no more favorably 509265-1724-13879091 than the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans; provided further that any Incremental Term A Loans or Incremental Term B Loans may add additional covenants or events of default not otherwise applicable to the Tranche A Term Loans or Tranche B Term Loans, as the case may be, or covenants more restrictive than the covenants applicable to the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Facility so long as all Lenders receive the benefits of such additional covenants, events of default or more restrictive covenants, (vi) to the extent the terms applicable to any Incremental Term A Loans are inconsistent with the terms applicable to the Tranche A Term Loans or the terms applicable to any Incremental Term B Loans are inconsistent with the terms applicable to the Tranche B Term Loans (except, in each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, and (vii) any Incremental Facility shall have the same Guarantees as, shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Loans (except to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent). Any Incremental Term Commitments established pursuant to an Additional Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be more than seven maturity dates in respect of the Credit Extension AmendmentFacilities (including any Extended Term Loans, Extended Revolving Commitments, Replacement Term Loans or Replacement Revolving Facilities).
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Holdings, the Parent Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Parent Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) 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 on and as of such date, (iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof that such Incremental Revolving Commitments are fully drawn), Holdings and the Parent Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.12 and 6.13, (iv) the Parent Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing as of the date of entry into the definitive acquisition documentation in respect of such Limited Conditionality 509265-1724-13879091 Acquisition (the “Limited Conditionality Acquisition Agreement”), (ii) on the date of effectiveness of the Limited Conditionality Acquisition Agreement, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct on and as of such date and (iii) on the date of effectiveness of the Limited Conditionality Agreement and assuming such Incremental Term Loans were made on such date, Holdings and the Parent Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.12 and 6.13. 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, on to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Facility Closing Date Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with respect accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving FacilityCommitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Parent Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the Parent Borrower referred to in paragraph (a) above and of the amount effectiveness of any Incremental Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in Section 5 be made pursuant to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementparagraph (e) above.
Appears in 1 contract
Sources: Credit Agreement (Trimas Corp)
Incremental Facilities. (a) The Parent Borrower and/or At any Additional Borrower time during the period from and any one or more Lenders (including New Lenders) may from time to time agree after the Closing Date through but excluding the date that such Lenders shall make, obtain or increase is the amount 30-month anniversary of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) at the applicable Borrower(s) and (iv) in the case option of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent Borrowers (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Revolver Increase Amount (each such increase, an “Increase”); provided, that in no event shall the Revolver Commitments and the Maximum Revolver Amount be increased by an amount in excess of the Available Revolver Increase Amount. Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments in connection with a proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 5 2.14 on more than 2 occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $10,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party,
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of Governors,
(iv) The interest rate margins with respect to the Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same extent as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the initial applicable Increase Date (as defined below).
(c) [reserved]
(d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolver Commitments and without any further amendment Maximum Revolver Amount pursuant to this AgreementSection 2.14.
(e) Each of the Lenders having a Revolver Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(f) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount 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 any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans or Revolving Commitments (any such new or increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, ) by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (ix) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans Commitments and (y) the Applicable Margin for applicable Increased Facility Closing Date (which shall be a date not less than 10 Business Days after the date on which such Incremental Term Loans; provided, that:
(A) notice is delivered to the aggregate principal amount Administrative Agent (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with such earlier date as shall be agreed by the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
Administrative Agent)); provided that (B) (xi) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Increased Facility Activation Closing Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 20,000,000 and (yii) no more than five the aggregate amount of Incremental Facility Closing Dates may be selected by the Parent Borrower Commitments obtained after the Closing Date; and
(J) no Date pursuant to this Section 2.24 shall not exceed $100,000,000. 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 New additional bank, financial institution or other entity which, with the consent of the Borrower, the Issuing Lender that elects to provide Commitments under an Incremental Facility and the Administrative Agent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed or conditioned), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be reasonably satisfactory to the Administrative Agent andexecute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case form of any Incremental Revolving LoansExhibit I-2, the Issuing Lenders and the Swingline Lender and whereupon such bank, financial institution or other entity (iia “New Lender”) shall become a Lender under 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 pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed or otherwise directed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to Date, the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Incremental Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Eurodollar Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicableEurodollar Borrowing) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche Type or Term Benchmark Tranche Eurodollar Borrowing had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche Type or Term Benchmark Tranche Eurodollar Borrowing requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency LIBO Screen Rate applicable to any Eurocurrency Eurodollar Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency LIBO Screen Rate then applicable to the Eurocurrency Eurodollar Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable Eurodollar Borrowing (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)...
(d) Notwithstanding anything It shall be a condition precedent to the contrary availability of any Incremental Commitments that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to and immediately after giving effect to the making of such Incremental Commitments, (ii) the representations and warranties set forth in this Agreementeach Loan Document shall be true and correct in all material respects (or, each if qualified by materiality, in all respects) on and as of the parties hereto hereby agrees that, on each Incremental Increased Facility Closing DateDate immediately prior to and immediately after giving effect to the making of such Incremental Commitments, this Agreement shall be amended 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 (but only to iii) the extent) necessary to reflect the existence Borrower shall have delivered such legal opinions, board resolutions, secretary’s certificate, officer’s certificate and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may other documents as shall be effected in writing reasonably requested by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoin connection with any Incremental Commitments.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Borrowers may on one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase occasions after the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableEffective Date, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, request the establishment of Incremental Commitments; provided, except with respect to Indebtedness that constitutes Permitted Refinancing Indebtedness in respect of any Indebtedness secured pursuant to clause (B), (C) or (E) of the definition of Permitted Collateral Liens (it being understood that to the extent the refinanced Indebtedness consists of Junior Obligations, such Permitted Refinancing Indebtedness shall be Junior Obligations), that after giving pro forma effect thereto and the use of proceeds thereof, the Loan-to-Value Ratio does not exceed 25%. Each such notice shall specify (i) the amount of date on which the Lead Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such increase shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and the Facility or Facilities involved, (ii) the applicable amount of the Incremental Facility Closing Date, Commitments being requested (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Commitment may elect or decline, in its 69 sole discretion, to provide such Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for Lead Borrower proposes to become an Incremental Lender, if such Incremental Term Loans; providedPerson is not then a Lender, that:must be an Eligible Assignee).
(Ab) The terms and conditions of any Incremental Facility and the Incremental Advances to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the 20242025 Repricing Commitments and 20242025 Repricing Advances; provided that (i) the aggregate principal amount (or committed amountupfront fees, if applicable) of all Incremental Term Loans interest rates and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect amortization schedule applicable to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated Facility and Incremental Advances shall be determined by the Parent Lead Borrower as a “Limited Conditionality Acquisition”, no Default and the Incremental Lenders providing the relevant Incremental Commitments; provided that if the weighted average yield relating to any Incremental Advance established or Event incurred exceeds the weighted average yield relating to any Class of Default has occurred and is continuing as of Advances immediately prior to the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as effectiveness of the applicable Incremental Facility Activation DateAmendment by more than 0.50% (to be determined by the Administrative Agent consistent with generally accepted financial practices, immediately prior to and after giving effect to any Additional Credit Extension Amendment margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (including but only to the making extent that an increase in the interest rate floor applicable to such Class of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoAdvances would result in an increase in an interest rate then in effect for such Class of Advances hereunder)), no Default or Event then the Applicable Margin relating to such Class of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower Advances shall be adjusted so that the weighted average yield relating to such Incremental Advances shall not exceed the weighted average yield relating to such Class of Advances by more than 0.50%; provided further that, the benefit of the foregoing proviso shall not apply with respect to (x) Incremental Advances that have a weighted average life to maturity and an Incremental Maturity Date, in complianceeach case, as that is 12 months or longer than the weighted average life to maturity of the Initial Advances and the 20242025 Repricing Advances and (y) any Series of Incremental Advances (the “Declining Series”), with respect to the incurrence of other Incremental Advances if the applicable Incremental Facility Activation DateAmendment in respect of the Declining Series so provides, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, ii) except in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any an Incremental Facility that any representation effected as an increase to an existing Class of Advances or warranty of any Loan Party be true and correct in all material respectsas Permitted Refinancing Indebtedness, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ea) the weighted average life to maturity of any Incremental Term Facility Advances shall be no earlier shorter than the weighted average life to maturity of the Initial Term Facility Advances with the latest Maturity Date (except in calculated based on the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity of such Advances as of the date of funding thereof (giving effect to any amendments thereto)) and (b) no Incremental Maturity Date shall be earlier than the Initial Term Facility);
Latest Maturity Date with respect to any Advance, (Fiii) any Incremental Facility shall be secured only by all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect or a portion of the Collateral with securing the Term Loans Obligations and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a guaranteed only by the Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 Parties and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (iiv) to the extent such consent would be required for an assignment the terms and conditions of such Loans or any Incremental Facility and Incremental Advances are not identical to the terms and conditions of the 20242025 Repricing Commitments and the 20242025 Repricing Advances (except to the extent permitted pursuant to Section 10.6 clauses (such consent not to be unreasonably withheld, delayed or conditionedi) and (ii)), either (A) such terms and conditions shall be reasonably satisfactory to the Administrative Agent andor (B) to the extent such terms and conditions are more favorable to the Incremental Lenders than the terms and conditions of any then-existing Class of Commitments or Advances, this Agreement shall be amended in form and substance reasonably satisfactory to the Administrative Agent to apply such terms and conditions to each such Class of Commitments and Advances. Any Incremental Commitments established pursuant to an Incremental Facility Amendment that do not have identical terms and conditions, and any Incremental Advances made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Advances for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Liens on the Collateral securing the other Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Borrowers, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default (or, in the case of any Incremental Revolving LoansAcquisition Facility, no Event of Default under Section 7.1.1 or 7.1.6) shall have occurred and be continuing on the Issuing Lenders date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the Swingline Lender and full amount of such Incremental Commitments shall have been funded as Advances on such date), (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by on the Administrative Agentdate of effectiveness thereof, on the representations and warranties of each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating Loan Party set forth in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower Documents (andor, in the case of Eurocurrency Loans or Term Benchmark Loansany Incremental Acquisition Facility, the Specified Representations and the Specified Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each Eurocurrency Tranche or Term Benchmark Tranchecase 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 applicableof such prior date, (iii) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on the Company shall make any payments required to be made pursuant to Section 3.4 in connection with such Incremental Facility Closing Date Commitments and the related transactions under this Section 2.14 and (iiiv) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant Company shall have delivered to the preceding sentence Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall equal reasonably be requested by the Eurocurrency Rate then applicable Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment 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 Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, provisions of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.14.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Advances of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only to the extent) necessary to reflect the existence or Lenders in respect of Commitments and terms Advances of the Incremental Term Loans applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Revolving Lenders in respect of Commitments evidenced thereby. Any such amendment may be effected in writing by and Advances of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Amendment.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 5 to 2.14(a) and of the same extent applicable to effectiveness of any Incremental Commitments, in each case advising the initial Revolving Commitments and without any further amendment to this AgreementLenders of the details thereof.
Appears in 1 contract
Sources: Term Loan Agreement (Carnival PLC)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) Borrower, by written notice to the Administrative Agent, may from time to time agree that such Lenders shall make, obtain or increase request the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or the establishment of Incremental Facility”), as applicable, by executing and delivering to Term Commitments; provided that the Administrative Agent an Additional Credit Extension Amendment specifying aggregate amount of all Incremental Commitments established hereunder shall not exceed $150,000,000. Such notice shall set forth (i) the amount and type of such increase the requested Incremental Commitments and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for date on which such Incremental Term Loans and Commitments are requested to become effective (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (which shall be not less than 10 Business Days or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of more than 60 days after the date of entry into such notice unless otherwise agreed by the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of Borrower and the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoAdministrative Agent), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingand, in the case of a request for Incremental Revolving Commitments, shall offer each Revolving Lender the opportunity to increase its Revolving Commitment, by its Applicable Revolving Percentage of the proposed increased amount. Each such Revolving Lender shall, by notice to the Borrower and the Administrative Agent given not more than 15 days after the date of the Borrower’s notice, either agree to increase its Revolving Commitment, by all or a portion of the offered amount or decline to increase its Revolving Commitment (and any Additional Credit Extension Amendment such Revolving Lender that does not deliver such a notice within such period of 15 days shall be deemed to have declined to increase its Revolving Commitment). In the event that, on the 15th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph relating to Incremental Revolving Commitments, the Revolving Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Commitments by an aggregate amount less than the increase in the total Revolving Commitments requested by the Borrower, the Borrower may, at its expense, arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Augmenting Revolving Lender”), which may include any Revolving Lender, to extend Revolving Commitments or increase their existing Revolving Commitments in an aggregate amount equal to the unsubscribed amount. Each Augmenting Revolving Lender, if not already a Revolving Lender hereunder, and each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of an Augmenting Revolving Lender, the Swingline Lender and each Issuing Bank (which approvals shall not be unreasonably withheld or delayed) and each Incremental Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Incremental Commitment and/or its status as a Lender hereunder. Any increase in the total Revolving Commitments may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Revolving Lenders.
(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; provided that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments that without paying such commitments are fully drawn) without fees with respect to the netting other Revolving Commitments. The terms and conditions of proceeds thereof any Incremental Term Commitments and any Permitted Acquisition the Incremental Term Loans to be made with the proceeds thereof))thereunder shall be, with the financial covenants except as otherwise set forth in Section 7.1the applicable Incremental Facility Agreement with respect to pricing, recomputed as amortization and maturity, identical to those of the last day of Term Commitments and the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
Term Loans (D) in no event and otherwise shall it be a condition on terms and subject to conditions reasonably satisfactory to the effectiveness of, or Borrowing under, any Incremental Facility Administrative Agent); provided that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ei) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Term Facility Loans and (except in the case of customary high-yield bridge loans which, subject to customary conditions (including ii) no payment or bankruptcy event of default), would either automatically Incremental Term Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Facility);
(F) all Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facilitythereunder, shall be determined between designated as a separate series (each 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 Parent, the Parent Borrower and the lenders for Borrower, each Incremental Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) on the date of effectiveness thereof, immediately after giving effect to such Additional Incremental Commitments, no Default shall have occurred and be continuing, (ii) on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit Extension Amendment;
thereunder, as applicable, to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct 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 true and correct in all material respects with respect to such prior date, (Iiii) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (iv) Parent and the Borrower shall have delivered to the Administrative Agent an officer’s certificate to the effect set forth in clauses (i), (ii) and (iii) above and shall have satisfied all such other conditions (if any) as shall be required pursuant to the applicable Incremental Facility Agreement. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Issuing Lenders Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Swingline Lender Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, if any Revolving Loans are outstanding, the Borrower (i) shall prepay all Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its option, fund such prepayment by simultaneously borrowing Revolving Loans in accordance with this Agreement, which Revolving Loans shall become a Lender under this Agreement be made by the Revolving Lenders ratably in accordance with their respective Applicable Revolving Percentage (calculated after giving effect to such Incremental Revolving Commitments) provided that such prepayment of Revolving Loans pursuant to an Additional Credit Extension Amendmentthis paragraph shall not be required if such Incremental Revolving Commitments are effected entirely by ratably increasing the Revolving Commitments of the existing Revolving Lenders. The payments made pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to Section 2.16.
(cf) Unless otherwise agreed Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the prepayments and borrowings required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.23(e).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (American Axle & Manufacturing Holdings Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain (i) add one or more new tranches of term facilities and/or increase the principal amount of their the Term Loans (each such new tranche or increase, an “Incremental Term Loans Facility”) or (ii) increase the aggregate amount of Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental Revolving Facility”; together with any Incremental Term Facilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (i) the amount of such increase (or loans that will comprise any such new tranche) and the Facility or Facilities involved, (ii) the applicable Incremental Increased Facility Closing Date (which may be selected by the Borrower after the Closing Date, (iii) the applicable Borrower(s) and (iviii) in the case of Incremental Term Loans, (wx) the applicable Incremental Term Maturity DateFacility maturity date, (xy) the amortization schedule for such Incremental Term Loans Facility and (yz) the Applicable Margin for such Incremental Term LoansFacility; provided, that:
that (A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger exists or similar agreement governing such acquisition shall exist immediately before or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment such Incremental Facility; (B) except as otherwise agreed by the Lenders (including the making of any New Lenders) committing to provide such Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Facility, no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))of which are to be used to finance a Permitted Acquisition, with the financial covenants set forth in Section 7.1, recomputed as each of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respectsrespects immediately prior to, except and solely to the extent required by the lenders providing after giving effect to, such Incremental Facility;
, except for representations and warranties made as of a specific earlier date that shall be true and correct in all material respects as of such earlier date, (EC) except in the case of customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith), the terms of which either provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this clause (C) or require such bridge loans be converted into or exchanged for permanent financing with a maturity date that would satisfy the following requirement in this clause (C), the maturity date and weighted average life to maturity of any such Incremental Term Facility shall be no earlier than or shorter than the maturity date and weighted average life to maturity maturity, respectively, of the Initial Term Facility; (D) the interest rates and amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the Lenders thereunder; provided that, only during the period commencing on the Closing Date and ending on the date that is twelve months following the Closing Date, 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, but excluding any arrangement, underwriting or similar fee paid by the Borrower) in respect of any Incremental Term Loans will not be more than 0.50% higher than the corresponding total yield for the existing Term Loans (it being understood that any such increase may take the form of 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), unless the interest rate margins with respect to the existing Term Loans are increased by an amount equal to the difference between the total yield with respect to the Incremental Term Loans and the corresponding total yield on the existing Term Facility minus 0.50% (such adjustment, the “MFN Adjustment”) and (E) the Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) and any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders thereunder, provided that, in the case of the Incremental Term Loans, to the extent such terms, taken as a whole, are materially more restrictive than the terms relating to the existing Term Facility (except in to the case of customary high-yield bridge loans which, subject to customary conditions extent permitted by clause (including no payment C) or bankruptcy event of default(D) above), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
such terms (Fx) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent, (y) shall only be applicable after the latest maturity date of the then-existing Term Loans or (z) the Lenders of the then-existing Term Loans receive the benefit of such more restrictive terms; provided that each that, the Lenders (including New Lenders) committing to provide Incremental Term Facility shall share ratably in any mandatory prepayments Loans, the proceeds of which are to be used to finance a Permitted Acquisition or Investment, may agree (i) that the satisfaction of the applicable Term Facility unless conditions set forth in the Parent Borrower foregoing clauses (A) and (B) may be tested as of the lenders date that the definitive documentation for such Permitted Acquisition or Investment is executed, (ii) that, with respect to a Limited Condition Acquisition, the reference in clause (A) to a Default or Event of Default shall instead refer to an Event of Default under Section 8(a) or (f) and (iii) with respect to a Limited Condition Acquisition, to waive without the consent of such Incremental Term Facility elect lesser payments;
any other Credit Party the condition set forth in clause (HB). Notwithstanding the foregoing, (i) any Incremental without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments and borrowings of Incremental Term Loans shall not exceed (x) the Revolving Loans in respect thereof shall be pursuant to greater of (x) $100,000,000 and (y) 100% of Consolidated EBITDA for the terms hereof otherwise applicable to period of four full consecutive fiscal quarters of the Revolving Facility and Borrower most recently ended (determined at the time of incurrence of such Indebtedness) (the “Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after Fixed Amount”) plus (y) an amount so long as the Total Leverage Ratio (as determined on a pro forma basis giving effect to such Additional Credit Extension Amendment;
Incremental Facility as though fully borrowed and any other transactions in connection therewith) is not in excess of 4.00:1.00 (Ithe “Incremental Ratio Amount”) (the sum of clauses (x) and (y), the “Incremental Limit”) and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 10,000,000 and (y) no more than five Incremental six Increased Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no . 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 New Lender that elects additional bank, financial institution or other entity which, with the consent of the Borrower and, other than with respect to provide Commitments under a Lender, an Incremental Facility Affiliate of a Lender, or an Approved Fund, the Administrative Agent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed conditioned or conditioneddelayed), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.22(a) shall be reasonably satisfactory to the Administrative Agent andexecute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case form of any Incremental Revolving LoansExhibit C, the Issuing Lenders and the Swingline Lender and whereupon such bank, financial institution or other entity (iia “New Lender”) shall become a Lender under 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 pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to the Revolving Facility, each the Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche Type or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche Type or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Term SOFR Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Term SOFR Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, Loans of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) The proceeds of the Incremental Facilities shall be used for purposes permitted by Section 6.10.
(e) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Increased Facility Closing Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent and with the Parent Borrower Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased increase, the “New Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”, together with the New Revolving Commitments, the “Incremental Revolving Commitments” and any facility under which ”), by up to an aggregate amount not to exceed $1,000,000,000 for all Incremental Commitments. Each such Incremental Term Loans or Incremental Revolving Commitments are made availablenotice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Facility”)Commitments shall be effective, as applicable, by executing and delivering which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent an Additional Credit Extension Amendment specifying and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (ix) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, 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 increase Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Facility Administrative Agent (such approval not to be unreasonably withheld or Facilities involveddelayed), (ii) the applicable Incremental Facility Closing Dateand, (iii) the applicable Borrower(s) and (iv) in the case of Incremental a New Revolving Commitment, the Issuing Bank (each of which approvals shall not be unreasonably withheld), unless such New Revolving Loan Lender or New Term Loans, (w) Loan Lender is an existing Lender. The terms and provisions of any New Revolving Commitments shall be identical to the existing Revolving Commitments; provided that the applicable Incremental Term Maturity Datecommitment fee, (x) upfront and other fees with respect to any New Revolving Commitments shall be determined by the amortization schedule Borrower and the applicable New Revolving Loan Lenders and the applicable arrangement fees with respect to any New Revolving Commitments shall be determined by the Borrower and the applicable arrangers for such Incremental New Revolving Commitments. The terms and provisions of any New Term Loan Commitments and any New Term Loans shall (a) provide that the maturity date of any New Term Loan that is a separate tranche shall be no earlier than the latest Term Loan Maturity Date for any then outstanding tranches of Term Loans and shall not have any scheduled amortization payments, (yb) share ratably in any prepayments of the Applicable Margin for existing Term Loan Facility, unless the Borrower and the New Term Loan Lenders in respect of such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental New Term Loans elect lesser payments and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt(c) other than pricing or maturity date, shall not exceed have the Incremental Cap;
same terms as the then outstanding tranches of Term Loans; provided that applicable interest rate margins, arrangement fees, upfront or other fees, original issue discount and amortization (B) (xsubject to the remaining terms of this proviso) with respect to any Incremental New Term Loan Commitments shall be determined by the Borrower and the applicable New Term Loan Lenders; provided, further, that New Term Loan Commitments may contain (x) additional or more restrictive covenants that are applicable only to periods after the latest Maturity Date of any Term Loans being incurred outstanding or Revolving Commitments in effect immediately prior to finance a Permitted Acquisition or a similar permitted Investment designated by giving effect to such New Term Loan Commitments and (y) other terms that are reasonably acceptable to the Parent Borrower as a “Limited Conditionality Acquisition”Administrative Agent. The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default has occurred shall exist and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (yii) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower recent month for which financial statements have been delivered pursuant to Section 5.01, the Borrower would have been in compliance with the Financial Covenants that are available;
applicable at such time; (Dy) the representations and warranties made or deemed made by the Borrower in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects, respects on the effective date of such Incremental Commitments except and solely to the extent required by that such representations and warranties expressly relate solely 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) and except for changes in factual circumstances specifically and expressly permitted under the lenders providing such Incremental Facility;
Loan Documents; and (Ez) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent; provided that : (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments and (B) if applicable, all corporate, partnership, member, or other necessary action taken by each Incremental Term Facility shall share ratably in any mandatory prepayments of Guarantor authorizing the applicable Term Facility unless the Parent Borrower and the lenders in respect Guaranty by such Guarantor of such Incremental Commitments; and (ii) if requested by the Administrative Agent, a customary opinion of counsel to the Borrower and, if applicable, the Guarantors (which may be in substantially the same form as delivered on the Effective Date and may be delivered by internal counsel of the Borrower), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lenders; provided, that, such Lender shall promptly return any existing Notes held by such Lender to the Borrower (or, if lost, destroyed or mutilated, if requested by the Borrower, a lost note affidavit in customary form and including a customary indemnity). On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans 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 will be held by existing Revolving Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to its New Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Facility elect lesser payments;
Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (Hi) any Incremental each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the New Term Loans 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 (y) the New Revolving Commitments and the New Revolving Loans Loan Lenders or the New Term Loan Commitments and the New Term Loan Lenders, as applicable, and (z) in respect thereof 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 upfront fees payable to the New Revolving Loan Lenders and/or New Term Loan Lenders shall be determined by the Borrower and the applicable New Revolving Loan Lenders and/or New Term Loan Lenders. The Incremental Commitments shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by 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. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.04.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Brixmor Operating Partnership LP)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions, by written notice to the Administrative Agent, request the establishment, during the Revolving Availability Period, of Incremental Revolving Commitments, provided that the aggregate amount of all the Incremental Revolving Commitments established hereunder during the term of this Agreement shall not exceed $200,000,000. Each such notice shall specify (including New Lendersi) the date on which the Company proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may from time be agreed to time agree that by the Administrative Agent) after the date on which such Lenders shall makenotice is delivered to the Administrative Agent, obtain or increase and (ii) the amount of their the Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “being requested (it being agreed that (A) any Lender approached to provide any Incremental Revolving Commitments” and any facility under which Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Revolving Commitment and (B) any Person that the Company proposes to become an Incremental Revolving Lender, if such Person is not then a Revolving Lender, must be an Eligible Assignee and must be approved by the Administrative Agent, each Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld)).
(b) The terms and conditions of any Incremental Revolving Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Company determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments are or Revolving Loans and other extensions of credit made availablethereunder, an “Incremental Facility”)such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, by executing and delivering shall be increased to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount equal such interest rate or fees payable in respect of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event Revolving Loans and other extensions of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliancecredit made thereunder, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment may be; provided further that the Company, at its election, may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the other Revolving Commitments.
(c) The Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by ▇▇▇▇▇▇ USA, the Borrowers, each Incremental Revolving Lender providing such Incremental Revolving Commitments, the Administrative Agent, each Issuing Bank and the Swingline Lender; provided that no Incremental Revolving Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such commitments are fully drawnIncremental Revolving Commitments (and assuming that the full amount of such Incremental Revolving Commitments shall have been funded as Loans on such date), no Default shall have occurred and be continuing (disregarding any Default that would arise as a result of any portion of the assumed Borrowings on such date exceeding the Borrowing Base then in effect), (ii) without on the netting date of proceeds effectiveness thereof and any Permitted Acquisition after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made with on such date, the proceeds thereof)), with the financial covenants representations and warranties of each Loan Party set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event Loan Documents shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party 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, except in each case on and solely to the extent required by the lenders providing as of such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (date, except in the case of customary high-yield bridge loans whichany such representation and warranty that expressly relates to a prior date, subject to customary conditions in which case such representation and warranty shall be so true and correct on and as of such prior date, (including no payment or bankruptcy event of default), would either automatically be converted into or iii) the Borrowers shall make any payments required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life made pursuant to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made Section 2.17 in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral connection with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the related transactions under this Section and (iv) ▇▇▇▇▇▇ USA and the Borrowers shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of 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 Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Lender” (and a Lender in respect of Revolving Commitments and Revolving Loans) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Revolving Commitments and Revolving Loans) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Revolving Commitments and Revolving Loans) hereunder and under the other Loan Documents, and (ii) (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure and the Revolving Total Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving Loans in respect thereof shall be pursuant outstanding (the “Existing Revolving Borrowings”) immediately prior to the terms hereof otherwise applicable to the Revolving Facility and effectiveness of such Incremental Revolving Commitments shall become be deemed to be repaid, (ii) each Incremental Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments under this Agreement shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment effectiveness of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and Commitments) multiplied by (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii2) the aggregate amount of each the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant Lender’s Applicable Percentage (calculated without giving effect to the preceding sentence effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Revolving Lender that shall equal the Eurocurrency Rate then applicable not have had a Revolving Commitment prior to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, effectiveness of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on pay to Administrative Agent in same day funds an amount equal to the Closing Date as product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.) multiplied by
Appears in 1 contract
Sources: Credit Agreement (Murphy USA Inc.)
Incremental Facilities. (aa)(i) The Parent On or prior to the Tranche B Effective Date and solely in connection with the consummation of the Acquisition, the Borrower and/or any Additional Borrower and any one may, by written notice to the Agent (which notice shall be delivered not less than two Business Days prior to the Tranche B Effective Date, unless the Agent shall otherwise agree), request (x) new incremental term loan “B” commitments from some or more all of the Initial Lenders (including New as defined in the Commitment Letter, referred to herein as the “Tranche B Incremental Lenders”) in an aggregate principal amount not to exceed the Tranche B Incremental Maximum Amount and substantially on the terms and subject to the conditions contemplated by the Commitment Letter, the fee letter referred to therein and with such changes thereof as may from time to time agree that be provided for in the Tranche B Incremental Joinder (as defined below) (such Lenders shall makenew incremental term loan “B” commitments, obtain or increase the amount of their “Tranche B Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under such new incremental term “B” loans thereunder, the “Tranche B Incremental Loans”) and (y) an increase in the Term Advances (which shall be implemented as an increase to the Term Facility and shall have identical terms as the Term Advances) from some or all of the Lenders to become effective as of the Tranche B Effective Date in an aggregate principal amount not to exceed the Term Advance Increase Maximum Amount (such Incremental increase, the “Term Loans or Incremental Revolving Commitments are made availableAdvance Increase” and each Lender, if any, agreeing to participate in the Term Advance Increase, an “Incremental FacilityIncreasing Term Lender”). It is agreed that, as applicable, by executing and delivering to upon the Administrative Agent an Additional Credit Extension Amendment specifying (i) occurrence of the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Tranche B Effective Date, (x) the amortization schedule obligations in respect of the Tranche B Incremental Facility and each of the other Obligations shall be secured and guaranteed on a pari passu basis consistent with the terms set forth in the Commitment Letter (subject to customary ordering of priorities of payments for such Incremental Term Loans amounts owing to the Agent and the like and other customary priority obligations) by the same collateral and guarantors and (y) any Term Advance Increase shall be subject to the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated same conditions contemplated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date Commitment Letter with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such B Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)Commitments.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Science Applications International Corp)
Incremental Facilities. (a) The Parent Borrower and/or At any Additional Borrower and any one time or more Lenders (including New Lenders) may from time to time agree that such Lenders shall makeafter the Restatement Effective Date and before the Extended Termination Date, obtain the Borrower, by written notice to Administrative Agent, may request (i) the establishment of one or increase more additional tranches of term loans (the amount of their “Incremental Term Loans or Loans”) and/or (ii) increases in the Revolving Loan Commitments (any such increased Revolving Commitments, the “Incremental Revolving Commitments” and any facility under which such and, together with the Incremental Term Loans or Loans, the “Incremental Revolving Commitments are made availableCredit Increases”); provided that each Incremental Credit Increase shall be in an aggregate principal amount that is not less than $50,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Facility”)Credit Increases shall be effective, as applicablewhich shall be a date not less than 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 an Ineligible Assignee) to provide all or a portion of the Incremental Credit Increases; provided that (i) no Lender will be required to provide such Incremental Credit Increase and (ii) any entity providing all or a portion of the Incremental Credit Increase that is not a Lender, by executing an Affiliate of a Lender or an Approved Fund shall not be an Ineligible Assignee and delivering shall be reasonably acceptable to the Administrative Agent an Additional (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Credit Extension Amendment specifying Increase shall become effective as of the applicable Increased Amount Date, provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of shall exist on such Increased Amount Date before or after giving effect to such Incremental Credit Increase, (ii) the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to Borrower shall be in compliance with Section 7.2.4 both before and after giving effect to any Additional such Incremental Credit Extension Amendment Increases, (including the making of iii) any Incremental Term Loans Loan shall mature on or Incremental Revolving Commitments pursuant thereto)after the Extended Termination Date, no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Civ) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made interest rate margin in respect of Incremental Revolving Commitments shall rank pari passu Loans (including upfront fees in right connection therewith in excess of payment and right of security any upfront fees issued or paid in respect of any then outstanding Revolving Loans) shall not exceed the Collateral with the Term Loans and Applicable Margin for the Revolving Loans and none of any Extending Revolving Loan Lender or Non-Extending Revolving Loan Lender or if it does so exceed either such Applicable Margin, the obligors or guarantors with respect thereto Applicable Margin so exceeded shall be a Person increased so that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders interest rate margin in respect of such Incremental Revolving Loan (giving effect to any upfront fees in connection therewith in excess of any upfront fees issued or paid in respect of any then outstanding Loans) is no greater than the Applicable Margin for such Revolving Loans and (v) the Incremental Credit Increases shall be effected pursuant to one or more joinder agreements in a form reasonably acceptable to the Administrative Agent (each, a “Joinder Agreement”) executed and delivered by the Borrower, the applicable Incremental Lender and the Administrative Agent pursuant to which such Incremental Lender agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Facility elect lesser payments;Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement.
(Hc) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Loan Commitments shall assign to each Person with an Incremental Revolving Commitment (each, a “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Loan Commitments, at the principal amount thereof, such interests in the Revolving Loans in respect thereof outstanding on such Increased Amount Date as shall be pursuant necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Loan Commitments after giving effect to the terms hereof otherwise applicable to the Revolving Facility and addition of such Incremental Revolving Commitments to the Revolving Loan Commitments, (b) the participations held by the Revolving Loan Lenders in the Revolving Exposure immediately prior to such Increased Amount Date shall become be automatically reallocated so as to held by existing Revolving Loan Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Loan Commitments under this Agreement after giving effect to the addition of such Additional Credit Extension Amendment;Incremental Revolving Commitments to the Revolving Loan Commitments, (c) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Loan Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (d) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to the Revolving Loans and the Revolving Loan Commitments.
(Id) On any Increased Amount Date on which any Incremental Term Loans are to be made, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with a commitment to make an Incremental Term Loan (each, an “Incremental Term Loan Lender”) shall make an Incremental Term Loan to the Borrower in an amount equal to such commitment amount, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loans made pursuant thereto.
(e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.9.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Hanesbrands Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) prior to the applicable Incremental Facility Closing Latest Maturity Date, the establishment of Incremental Term Commitments, and (iii) prior to the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Latest Maturity Date, the incurrence of Incremental Equivalent Debt (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all together with Incremental Term Loans and Incremental Revolving CommitmentsCommitments and Incremental Revolving Loans made thereunder, together with “Incremental Extensions of Credit”), in an aggregate amount for all such Incremental Credit Extensions not in excess of the aggregate principal amount greater of any Permitted Incremental Equivalent Debt, shall not exceed (A) the Incremental Cap;
Fixed Amount, plus (B) such additional amount as would not cause the Secured Leverage Ratio, computed on a Pro Forma Basis, after giving effect to such Incremental Facility or issuance of Incremental Equivalent Debt and the use of proceeds thereof, as of the last day of the Test Period most recently ended prior to the effective date of the relevant Incremental Facility Amendment or issuance of Incremental Equivalent Debt in respect of which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, as of the last day of the most recent Test Period contained in the financial statements referred to in Section 3.04), to exceed, 2.75 to 1.00 (it being understood and agreed that, if the applicable incurrence test in clause (B) is satisfied on a Pro Forma Basis after giving effect to any Incremental Extension of Credit, such Incremental Extension of Credit may be incurred under clause (B) regardless of whether there is capacity under clause (A)); provided that for purposes of such pro forma calculation, (x) with respect to any for purposes of clause (B), if the proceeds of the relevant Incremental Term Loans being incurred Extension of Credit will be applied to finance a Permitted Acquisition or the irrevocable redemption or repayment of Indebtedness, compliance with the Secured Leverage Ratio on a similar permitted Investment designated by Pro Forma Basis will, at the Parent Borrower as a “Limited Conditionality Acquisition”option of the Borrower, no Default or Event of Default has occurred and is continuing be determined as of the date on which the binding agreement for such Permitted Acquisition is entered into or the date of entry into the applicable acquisitionirrevocable notice of redemption or repayment, merger or similar agreement governing such acquisition or as applicable, (y) otherwisethe Revolving Commitments (including, as if applicable, any Incremental Revolving Commitments that would become effective in connection with the requested Incremental Facility) and other Incremental Credit Extensions shall be assumed to be fully funded and (z) all such Incremental Equivalent Debt constitutes Consolidated Total Secured Debt. Each Class of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or and Incremental Revolving Commitments pursuant thereto)and shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $50,000,000; provided that such amount may be less than $50,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Extensions of Credit set forth above.
(b) The effectiveness of each Incremental Facility Amendment will be subject to the conditions that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment or the incurrence of such Incremental Equivalent Debt, no Default or Event of Default has occurred and is continuing or shall result therefrom;
therefrom (C) provided that in the Parent Borrower shall be in compliance, as event the proceeds of any Incremental Facility Activation DateExtensions of Credit are used to finance any Permitted Acquisition or other Investment permitted hereunder, on a pro forma basis such condition precedent set forth in this clause (including giving pro forma effect to i) may be waived or limited as agreed between the applicable Additional Credit Borrower and the Lenders providing such Incremental Extension Amendment (including of Credit, without the making consent of any Incremental Term Loans other Lenders), (ii) the representations and any Incremental Revolving Commitments thereunder warranties of the Borrower and each other Loan Party, as applicable, set forth in the Loan Documents would be true and correct in all material respects (and assumingor, in the case of representations and warranties qualified as to materiality, in all respects) on and as of the date of, and immediately after giving effect to, the incurrence of such Incremental Extension of Credit (provided that in the event the proceeds of any Additional Incremental Extension of Credit Extension Amendment are used to finance any Permitted Acquisition or other Investment permitted hereunder, such condition precedent set forth in this clause (ii) may be limited to (x) customary specified representations and warranties with respect to the Borrower and its Restricted Subsidiaries and (y) customary specified acquisition agreement representations with respect to the Person to be acquired), (iii) after giving effect to such Incremental Revolving Commitments Extension of Credit and the application of the proceeds therefrom (and assuming that the full amount of such commitments are fully drawn) without Incremental Extension of Credit shall have been funded on such date), the netting of proceeds thereof and any Permitted Acquisition made Borrower shall be in compliance on a Pro Forma Basis with the proceeds thereof)), with the financial covenants set forth contained in Section 7.1, Sections 6.12 and 6.13 recomputed as of the last day of the most recently ended fiscal quarter Test Period of the Parent Borrower for in respect of which financial statements are available;
have been delivered pursuant to Section 5.01(a) or (Db) in no event shall it be a condition (or, prior to the effectiveness ofdelivery of any such financial statements, or Borrowing under, as of the last day of the most recent Test Period contained in the financial statements referred to in Section 3.04) (provided that in the event the proceeds of any Incremental Facility Extension of Credit are used to finance any Permitted Acquisition or the irrevocable redemption or repayment of Indebtedness, such condition precedent set forth in this clause (iii) shall be required to be satisfied, at the Borrower’s election, as of the date on which the binding agreement for such Permitted Acquisition is entered into or the irrevocable redemption or repayment of Indebtedness, rather than the date of effectiveness, of the applicable Incremental Extension of Credit; provided, further, that any representation if the Borrower has made the election to measure such compliance on the date on which such a binding agreement for such Permitted Acquisition is entered into or warranty the date of irrevocable notice of redemption or repayment, as applicable, then in connection with the calculation of any Loan Party financial ratio with respect to any covenant set forth in Article VI or in connection with the designation of an Unrestricted Subsidiary pursuant to Section 5.14, in each case on or following such date and prior to the date on which such acquisition is consummated or the related binding agreement is terminated or such redemption or repayment is made, such financial ratio shall be true calculated on a Pro Forma Basis assuming such acquisition, repayment or redemption and correct any other pro forma events in all material respectsconnection therewith (including the incurrence of Indebtedness and such Incremental Extension of Credit) have been consummated, except and solely to the extent such calculation would result in a lower Leverage Ratio or a higher Interest Coverage Ratio than would apply if such calculation was made without giving effect to such acquisition, the irrevocable redemption or repayment of Indebtedness and other pro forma events in connection therewith or the incurrence of Indebtedness or any Incremental Extension of Credit on a Pro Forma Basis) and (iv) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (B) of paragraph (a) of this Section and clause (iii) above, (iv), upon the effectiveness of any Incremental Facility, all fees and expenses and cost reimbursements owing in respect of such Incremental Facility to the Administrative Agent and the Incremental Lenders with respect to such Incremental Facility shall have been paid and (v), upon the effectiveness of any Incremental Facility, the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as required by the lenders relevant Incremental Facility Amendment and generally consistent with those delivered on the Effective Date under Section 4.01 other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent.
(c) 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 Revolving Loans and other extensions of credit made thereunder; provided that (i) any Incremental Revolving Commitments (and any Incremental Revolving Loans made thereunder) shall not have (x) a final maturity date earlier than (but may have a maturity date later than) the Revolving Maturity Date or (y) a weighted average life to maturity that is shorter than the remaining weighed average life to maturity of the then remaining Revolving Commitments, (ii) there shall be no mandatory reduction of any Incremental Revolving Commitments prior to the Revolving Maturity Date, (iii) the up-front fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility;
Facility and (Eiv) one or more additional financial maintenance covenants may be added to this Agreement for the benefit of any Incremental Revolving Commitment so long as such financial maintenance covenants are for the benefit of all other Lenders in respect of all Loans and Commitments outstanding at the time that the applicable Incremental Revolving Commitment becomes effective. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be on terms and conditions that are either (A) substantially identical to the terms and conditions of this Agreement or (B) reasonably satisfactory to the Administrative Agent (except to the extent applicable only to periods after the Latest Maturity Date) and shall be set forth in the applicable Incremental Facility Amendment, except as otherwise set forth herein; provided that (i) pricing (including the up-front fees and interest rates), maturity, amortization schedule and mandatory prepayment provisions, and any provisions relating to “disqualified lenders” applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Revolving Commitments and of any then-outstanding Classes of Term Loans, and (iii) no Incremental Term Loan Maturity Date shall be earlier than the Latest Maturity Date at the time of incurrence of such Incremental Term Facility. Notwithstanding the foregoing, the terms and conditions applicable to an Incremental Facility may (except i) exclude a financial maintenance covenant to the extent agreed between the Borrower and the Lenders providing such Incremental Facility or (ii) include additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders providing such Incremental Facility which are applicable only during periods after the Latest Maturity Date that is in effect on the date of effectiveness of such Incremental Facility Amendment or, in the case of customary high-yield bridge loans whichadditional covenants, subject are made to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made apply in respect of and for the benefit of each other Class of Commitments or Loans hereunder. Notwithstanding anything to the contrary herein, each Incremental Revolving Commitments Facility and all extensions of credit thereunder shall rank be secured by the Collateral on a pari passu in right basis with the other Loan Document Obligations.
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of payment and right the relevant Incremental Extension of security Credit. Any additional bank, financial institution, existing Lender or other Person that elects to extend commitments in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent Borrower and, in the case of any Incremental Revolving LoansCommitments, the Administrative Agent and each Issuing Lenders Bank (such approval not to be unreasonably withheld). Each Incremental Facility will be implemented pursuant to an Incremental Facility Amendment that will constitute an amendment to this Agreement and, as appropriate, the other Loan Documents, which shall be executed by the Borrower, each Incremental Lender party thereto and the Swingline Administrative Agent (but will not require the consent of any other Lenders). No Lender and shall be obligated to provide any Incremental Extension of Credit unless it so agrees. Commitments in respect of any Incremental Facility will become Commitments (iior in the case of any Incremental Revolving Commitment to be provided by an existing Revolving Lender, an increase in such Lender’s Revolving Commitment) shall become a Lender under this Agreement upon the effectiveness of such Incremental Facility Amendment. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement or to any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Incremental Lenders comparable to the provisions of Section 9.02(b)).
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment. Any assignment pursuant to this paragraph (e) by an Additional Credit Extension existing Revolving Lender of any portion of a Eurocurrency Revolving Loan will be treated as a prepayment of such assigned portion and shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of the related Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cg) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Commitments or Incremental Equivalent Debt, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.20(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans or Revolving Commitments (any such new or increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, ) by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (ix) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans Commitments and (y) the Applicable Margin for applicable Increased Facility Closing Date (which shall be a date not less than 10 Business Days after the date on which such Incremental Term Loans; provided, that:
(A) notice is delivered to the aggregate principal amount Administrative Agent (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with such earlier date as shall be agreed by the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
Administrative Agent)); provided that (B) (xi) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Increased Facility Activation Closing Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 10,000,000, (ii) the aggregate amount of Incremental Commitments obtained after the Second Amendment Effective Date pursuant to this Section 2.24 shall not exceed $100,000,000 and (yiii) Incremental Commitments may be made no more than five Incremental Facility Closing Dates two times after the Second Amendment Effective Date (or such greater number as may be selected agreed by the Parent Borrower after the Closing Date; and
(J) no 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 New Lender that elects to provide Commitments under an Incremental Facility additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed or conditioned), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be reasonably satisfactory to the Administrative Agent andexecute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case form of any Incremental Revolving LoansExhibit I-2, the Issuing Lenders and the Swingline Lender and whereupon such bank, financial institution or other entity (iia “New Lender”) shall become a Lender under 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 pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed or otherwise directed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to Date, the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Incremental Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Eurodollar Loans, of each Eurocurrency Tranche or Term Benchmark Eurodollar Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Eurodollar Base Rate applicable to any Eurocurrency Eurodollar Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Eurodollar Base Rate then applicable to the Eurocurrency Eurodollar Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Eurodollar Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)...
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto[Reserved].
(e) The Closing Date Incremental Revolving Commitments It shall be provided on a condition precedent to the Closing Date as availability of any Incremental Revolving Commitments that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to and immediately after giving effect to the making of such Incremental Commitments, subject to (ii) the conditions representations and warranties set forth in Section 5 each Loan Document shall be 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 same extent applicable making of such Incremental Commitments, except to the initial Revolving Commitments extent expressly made as of an earlier date, in which case they shall be so true and without correct as of such earlier date and (iii) the Borrower shall have delivered such legal opinions, board resolutions, secretary’s certificate, officer’s certificate and other documents as shall be reasonably requested by the Administrative Agent in connection with any further amendment to this AgreementIncremental Commitments.
Appears in 1 contract
Incremental Facilities. The Borrower may by written notice to the Administrative Agent elect to request (aA) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time prior to time agree that such Lenders shall makethe Revolving Commitment Termination Date, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or (B) prior to the Tranche B Term Loan Maturity Date, the establishment of one or more new term loan commitments (the “Incremental Term Loans or Loan Commitments”), by an amount not in excess of the sum of (i) $100,000,000 in the aggregate and (ii) an unlimited amount so long as such amount at such time could be incurred without causing the pro forma Consolidated Senior Secured Leverage Ratio to exceed 3.25:1.00 (assuming that (x) the Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans fully drawn and (y) the Applicable Margin cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Indebtedness for purposes of calculating such Consolidated Senior Secured Leverage Ratio); provided that no such Incremental Revolving Commitments or Incremental Term Loans; providedLoan Commitments shall be in an aggregate amount less than $25,000,000 (except as shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $100,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date pursuant to clause (i) above), that:
and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the aggregate principal amount date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Commitments or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Loan Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtas applicable, shall be effective, which shall be a date not exceed less than 10 Business Days after the Incremental Cap;
date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (x) with respect to any each, an “Incremental Revolving Loan Lender” or “Incremental Term Loans being incurred Loan Lender”, as applicable) to finance a Permitted Acquisition whom the Borrower proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any Lender approached to provide all or a similar permitted Investment designated by portion of the Parent Borrower Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as a “Limited Conditionality Acquisition”, of such Increased Amount Date; provided that (1) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Incremental Revolving Commitments or (y) otherwiseIncremental Term Loan Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (2) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Series of Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 3.02 shall result therefrom;
be satisfied; (C3) the Parent Borrower Holdings shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis compliance (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, calculated in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made accordance with the proceeds thereof)), definition of Consolidated Adjusted EBITDA) with each of the financial covenants set forth in Section 7.1, recomputed 6.07 as of the last day of the most recently ended fiscal quarter Fiscal Quarter, after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the Parent relevant determination period but prior to or simultaneous with the borrowing of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the Borrower for which financial statements are available;
(Dshall make any payments required pursuant to Section 2.18(c) in no event shall it be a condition to connection with the effectiveness of, Incremental Revolving Commitments or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility Loan Commitments, as applicable; (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F6) all Incremental Term Loans other fees and any Revolving Loans made expenses owing in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; provided that (7) such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall share pari passu in the Guarantees and Collateral; and (8) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans 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 will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender of any Series shall share ratably make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any mandatory prepayments Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the applicable Term Facility unless the Parent Borrower Borrower’s notice of each Increased Amount Date and the lenders in respect of such Incremental Term Facility elect lesser payments;
thereof (Hy) any the Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments shall become Revolving Commitments under this Agreement after giving effect to and the Incremental Term Loan Lenders of such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentSeries, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 as applicable and (yz) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of each notice to any Incremental Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on in each Incremental Facility Closing Date with respect case subject to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined assignments contemplated by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increasedthis Section. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower terms and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term Loans and as set forth in the Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental Revolving Commitments evidenced therebyLoans shall be identical to the Revolving Loans and such Incremental Revolving Loans will be documented solely as an increase to the Revolving Commitments, without any change in terms other than any change that is more favorable to the Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall be empowered to, on behalf of all the Revolving Lenders, execute an amendment to the definitive documentation relating to the Revolving Loans in order to give effect to such a change more favorable to the Revolving Lenders). Any 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 existing Term Loans (except by virtue of amortization or prepayment of such amendment may existing Term Loans prior to such date of determination), (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be effected in writing no shorter than the latest of the final maturity of the existing Term Loans, and (iii) if the “yield” of any relevant Loan exceeds the “yield” on the existing Term Loans by more than 50 basis points, the applicable margins for the existing Term Loans shall be increased to the extent necessary so that the “yield” on such Term Loans is 50 basis points less than the “yield” on such relevant Incremental Term Loans (for purposes of this paragraph “yield” shall be reasonably determined by the Administrative Agent and (w) to include the Parent Borrower and furnished applicable interest rate margin, (x) to exclude arrangement, commitment, structuring or other fees payable to the other parties hereto.
Joint Lead Arrangers (eor their respective Affiliates) The Closing Date in connection with such Loans or to one or more arrangers (or their Affiliates) of any such Loan that are not shared with all Lenders providing such Loans, (y) to include original issue discount and upfront fees paid to the Lenders thereunder (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity), and (z) to include, if the Incremental Revolving Commitments Term Loans include an interest rate floor greater than the applicable interest rate floor under the existing Term Loans, such differential between interest rate floors equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term Loans shall be provided on the Closing Date as Incremental Revolving Commitmentsrequired, subject but only to the conditions set forth extent an increase in Section 5 to the same extent interest rate floor in the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the initial Revolving Commitments and existing Term Loans shall be increased to the extent of such differential between interest rate floors). Each Joinder Agreement may, without the consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.24.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or after the Second Restatement Effective Date elect to increase the amount of their Incremental Term Loans Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableexisting tranche of) term loans denominated in Dollars (each, an “Incremental FacilityTerm Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments and (y) $10,000,000 (or such lesser amount as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedmay agree), (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower so long as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment Refinancing Term Loans and Refinancing Revolving Commitments) the aggregate principal amount of Increased Commitments or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and to be established or incurred, as applicable, does not exceed the Incremental Cap at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Loans made Commitment or Extended Revolving Commitment, or to participate in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “New Lender”), to increase their existing Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, or extend Revolving Commitments or Extended Revolving Commitments, as the Administrative Agentcase may be; provided that each Incremental Term Facility New Lender (and, in the case of an Increased Commitment, each Increasing Lender) shall share ratably in any mandatory prepayments be subject to the approval of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agentand, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required under Section 9.04 for an assignment of to such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldNew Lender, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank (in each case, such consents not to be unreasonably withheld or delayed). Without the consent of any Incremental Revolving LoansLenders other than the relevant Increasing Lenders or New Lenders, the Issuing Lenders this Agreement and the Swingline Lender and (ii) shall become a Lender under this Agreement other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the date agreed by the Borrower, the Administrative Agent, on Agent and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Incremental Facility Closing Date with respect Lender thereof. Notwithstanding the foregoing (but subject to the Revolving Facilityfollowing proviso), each Borrower shall borrow Revolving Loans under the relevant increased no Increased Commitments or Extended Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency or Incremental Term Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicableshall be permitted under this Section 2.19(a) which would then have been outstanding from such Lender if unless (i) each on the proposed date of the effectiveness of such Type, Eurocurrency Tranche increase in the Revolving Commitments or Term Benchmark Tranche had been borrowed Extended Revolving Commitments or effected by such Borrower on borrowing of such Incremental Facility Closing Date Term Loan, the conditions set forth in paragraphs (a) and (iib) of Section 4.02 shall be satisfied (or waived by the aggregate amount applicable New Lenders or Increasing Lenders) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of each such Typethe Borrower; provided, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant that to the preceding sentence shall equal extent agreed to by the Eurocurrency Rate then applicable to the Eurocurrency Loans Lenders providing such Increased Commitments or Adjusted Incremental Term SOFR Rate for Term Benchmark Loans, as applicable, and the proceeds of such Increased Commitments or Incremental Term Loans, as the case may be, are used to finance a Permitted Acquisition or Investment (other than Investments in (A) cash and Cash Equivalents and (B) any pre-existing and wholly-owned Restricted Subsidiary), with respect to the condition set forth in Section 4.02(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.02(b) shall be limited to an Event of Default under Sections 7.01(a), (b), (h) or (i), (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenant contained in Section 6.09 as of the last day of the most recent fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Sections 5.01(a) or (b) of this Agreement (or, prior to the initial delivery under this Agreement, Section 6.1 of the Amended and Restated Credit Agreement) prior to such time and (iii) if any Incremental Term Loans are incurred pursuant to this Section 2.19 in reliance on clause (a) of the definition of “Incremental Cap” and the proceeds of such Incremental Term Loans will be used to prepay, repay, redeem, retire, purchase, defease or refinance any unsecured Indebtedness of the Parent, any Intermediate Holdco, the Borrower or any Subsidiary, at the time of such incurrence, on a Pro Forma Basis, the Consolidated Senior Secured Leverage Ratio, as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Sections 5.01(a) or (b) of this Agreement (or, prior to the initial delivery under this Agreement, Section 6.1 of the Amended and Restated Credit Agreement), is equal to or less than 2.00 to 1.00. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such ▇▇▇▇▇▇’s pro rata share (after giving effect to any non-ratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Term Benchmark Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the same Eurocurrency Tranche or Additional Credit Extension Amendment providing for such Incremental Term Benchmark TrancheLoans; provided that (i) except with respect to an amount equal to the Maturity Carveout Amount at such time, as applicable (or, until x) the expiration final scheduled maturity date of any Incremental Term Loans shall be no earlier than the then-current Interest Periodlatest maturity date of any Class of Term Loans outstanding on the Second Restatement Effective Date (or any later date required pursuant to any Additional Credit Extension Amendment entered into after the Second Restatement Effective Date that has previously become effective) and (y) the Weighted Average Life to Maturity of any Incremental Term Loans (other than Refinancing Term Loans) shall not be shorter than the longest then remaining Weighted Average Life to Maturity of any Class of Term Loans outstanding on the Second Restatement Effective Date (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment entered into after the Second Restatement Effective Date that has previously become effective), (ii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Term Loans in any mandatory prepayment hereunder (except in the case of (a) incurrence of Refinancing Indebtedness in respect thereof and (b) mandatory prepayments with respect to a Class of Incremental Term Loans issued subject to customary escrow provisions that include a mandatory prepayment applicable solely to such other rate as Class of Incremental Term Loans if the applicable escrow release event does not occur prior to the specified escrow “outside date”), (iii) the provisions with respect to payment of interest (including any “MFN” provisions), original issue discount and upfront fees shall be agreed upon between as set forth in the Parent Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that, other than with respect to any Incremental Term Loans the proceeds of which are to be used by the Borrower to finance, in whole or in part, a Permitted Acquisition or any other acquisition that constitutes an Investment hereunder, if the Effective Yield of any Class of Incremental Term Loans established after the Second Restatement Effective Date (other than Refinancing Term Loans) exceeds the Effective Yield of the Term Loans by more than 50 basis points, then the Applicable Rate for the Term Loans shall be increased to the extent required so that the Effective Yield of the Term Loans is equal to the Effective Yield of such Incremental Term Loans, minus 50 basis points, (iv) any Class of Incremental Term Loans may contain customary excess cash flow mandatory prepayment provisions; provided that such mandatory prepayments with respect to such Incremental Term Loans shall be made on a no greater than pro rata basis with the then existing Term Loans, (v) if the Borrower and the lenders providing the relevant Lender).
Class of Incremental Term Loans agree, the Additional Credit Extension Amendment providing for such Incremental Term Loans may permit repurchases by, or assignments to, the Borrower or any Restricted Subsidiary of such Incremental Term Loans pursuant to open market purchases or “dutch auctions” so long as (d1) Notwithstanding anything to the contrary in this Agreementno Event of Default shall have occurred and be continuing, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent2) necessary to reflect the existence and terms of the Incremental Term Loans purchased are immediately and automatically canceled, (3) no proceeds from any loan under any revolving credit facility shall be used to fund such assignments or repurchases and (4) the purchasing party shall be required to identify itself and the seller shall make a customary “big boy” representation and (vi) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (v) above) to the extent not identical to the terms of the then outstanding Term Loans, shall be permitted if reasonably satisfactory to the Administrative Agent. The terms of any Increased Commitments shall be the same as those of the Revolving Commitments evidenced thereby. Any such amendment or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may be effected in writing by the Administrative Agent have a later maturity date than, and the Parent Borrower pricing and furnished fees different from, those applicable to the other parties heretoRevolving Commitments and Extended Revolving Commitments. For the avoidance of doubt, no Lender shall have any obligation to provide any Increased Commitment or Incremental Term Loan after the date hereof by virtue of this Agreement.
(eb) The Closing Date Incremental Revolving Commitments This Section 2.19 shall be provided on the Closing Date as Incremental Revolving Commitments, subject override any provisions in Section 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makethe establishment, obtain or increase during the amount Revolving Availability Period, of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Commitments, an “provided that the aggregate amount of all the Incremental Facility”)Commitments established hereunder shall not exceed $250,000,000 during the term of this Agreement. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for such Company proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans such Person is not then a Lender, must be an Eligible Assignee and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated must be approved by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld)).
(b) The terms and conditions of any Incremental Revolving Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that, if the Company determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, as the case may be; provided further that the Company at its election may pay upfront, closing or similar fees with respect to Incremental Revolving Commitments that without paying such commitments are fully drawn) without fees with respect to the netting other Revolving Commitments. The terms and conditions of proceeds thereof any Incremental Term Commitments and any Permitted Acquisition the Incremental Term Loans to be made thereunder shall be, except with the proceeds thereof))respect to pricing, with the financial covenants set forth in Section 7.1upfront closing or similar fees or original issue discount, recomputed as amortization and maturity, substantially identical to those of the last day of Tranche A Term Commitments and the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
Tranche A Term Loans; provided that (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ei) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Tranche A Term Facility Loans and (except in the case of customary high-yield bridge loans which, subject to customary conditions (including ii) no payment or bankruptcy event of default), would either automatically Incremental Term Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Revolving Maturity Date or the Tranche A Term Facility);
(F) all Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facilitythereunder, shall be determined between designated as a separate series (each 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 Parent Borrower and the lenders for Company, each Incremental Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each that, except as set forth in the penultimate sentence of this paragraph (c), no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments (Iand assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), no Default shall have occurred and be continuing, (ii) after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), and any related transaction, on a pro forma basis in accordance with Section 1.04(b), the Company shall be in compliance with the covenants set forth in Sections 6.11 and 6.12 (in each case, calculated as of the last day of or for the period of four consecutive fiscal quarters of the Company then most recently ended for which the financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent period of four consecutive fiscal quarters included in the pro forma financial statements referred to in Section 3.04(b) or Section 4.02(e), as applicable)); provided that, solely for purposes of determining the Leverage Ratio for purposes of this clause (ii), Total Indebtedness shall be determined on a pro forma basis with all Revolving Commitments then in effect (including any Incremental Revolving Commitments) being deemed outstanding “Indebtedness”, (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Notwithstanding the foregoing, if any Incremental Commitments shall be established to finance a Permitted Acquisition or any Investment permitted hereunder, then, to the extent agreed by the Lenders providing such Incremental Commitments, customary “Sungard” or certain funds conditionality may be implemented with respect to the funding of such Incremental Commitments (but not the Commitments of other Lenders) in lieu of the conditions set forth in this paragraph (c). 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, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender, and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Issuing Lenders Revolving Exposures and the Swingline Lender Designated Currency Revolving Exposures, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) In connection with the effectiveness of any Incremental Revolving Commitments, (i) the Borrowers and the Lenders shall implement such measures as shall be reasonably specified by the Administrative Agent (which may include assignments, deemed prepayments of Loans or other measures) in order that the Revolving Exposures of the Lenders will be held ratably in accordance with their Revolving Commitments, and (ii) any “breakage” costs resulting from the implementation of such measures shall become a Lender under this Agreement be subject to compensation by the Company pursuant to the provisions of Section 2.16 if the date of the effectiveness of such measures occurs other than on the last day of an Additional Credit Extension Amendmentapplicable Interest Period.
(cf) Unless otherwise agreed Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e).
Appears in 1 contract
Sources: Credit Agreement (Knowles Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may, on one or more Lenders occasions after the Closing Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (including New Lendersx) may from time to time agree that such Lenders shall makeexisting Term Loans of any Class (the commitments thereto, obtain or increase the amount of their “Incremental Term Loans or Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (any such increased Revolving Commitments, “Incremental Revolving Credit Commitments” and any facility under which such and, together with the Incremental Term Loans or Loan Commitments, the “Incremental Revolving Commitments are made availableLoan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Incremental FacilityApproved Increase”), as applicableby an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying Agent. Each such notice shall specify (i) the amount of such increase and the Facility proposed increase, if any, to the existing Revolving Commitments or Facilities involvedTerm Loans, as applicable, (ii) the applicable Incremental Facility Closing date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the applicable Borrower(sidentity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed ▇▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other Lender, effect such amendments to this Agreement and (iv) the other Loan Documents as may be necessary or appropriate, in the case opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Commitments and Incremental Term LoansLoan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (wor waived) prior to the applicable effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term LoansLoan Commitments; provided, further, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”have been satisfied so long as, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisitioninitial borrowing pursuant to such Acquisition-Related Incremental Commitment, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or Specified Representations shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respectsrespects (or in all respects if qualified by materiality) immediately prior to, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement immediately after giving effect to, the initial borrowing pursuant to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Acquisition-Related Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension AmendmentCommitment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date terms and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then provisions applicable to the Eurocurrency relevant Class of Loans or Adjusted Term SOFR Rate and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for Term Benchmark Loansthe avoidance of doubt, as applicable, of the other Lenders differences in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderupfront fees).
(d) Notwithstanding anything With respect to any Incremental Revolving Commitments, to the contrary in this Agreementextent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the parties hereto hereby agrees Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolver Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, on each after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoCommitments.
(e) The Closing Date Incremental Revolving Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be provided on entitled to all the Closing Date as Incremental Revolving Commitmentsbenefits afforded by, subject to this Agreement and the conditions set forth in Section 5 to other Loan Documents, and shall, without limiting the same extent applicable to foregoing, benefit equally and ratably from the initial Revolving Commitments guarantees and without any further amendment to this Agreementsecurity interests created by the Loan Documents.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders (including New Lenders) occasions at any time after the Closing Date, the Obligors may from time by written notice to time agree that such Lenders shall make, obtain or the Administrative Agent elect to request an increase to the amount of their Incremental Term Loans or Revolving existing Commitments (any such increased Revolving increase, the "Incremental Commitments" and the loans made thereunder, “the "Incremental Revolving Commitments” and any facility under Loans") in an aggregate amount not to exceed $300,000,000. Each such notice shall specify the date (each, an "Increased Amount Date") on which the Obligors propose that such Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent Agent. Incremental Commitments may be provided by any existing Lender (it being understood that no existing Lender shall have an Additional Credit Extension Amendment specifying obligation to make, or provide commitments with respect to, an Incremental Loan) or by any other Person (each, an "Incremental Lender"); provided that any such Incremental Lender to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower, the Administrative Agent, the Issuing Banks and the Swingline Lender unless such Incremental Lender is an existing Lender (each of which approvals shall not be unreasonably withheld, conditioned or delayed). The terms and provisions of any Incremental Commitments shall be identical to the existing Commitments.
(b) The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent:
(i) the amount of immediately prior to and after giving pro forma effect to such increase Incremental Commitments and borrowings and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case use of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”proceeds thereof, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary highexist; 0010146-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.0000535 NYO1: 2000703970 .53
Appears in 1 contract
Sources: Revolving Credit Agreement (Millicom International Cellular Sa)
Incremental Facilities. (a) The Parent So long as no Event of Default exists or would arise therefrom, the Borrower and/or shall have the right, at any Additional Borrower time and any one or more Lenders (including New Lenders) may from time to time agree after the Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Existing Tranche of Existing Revolving Commitments (the “Supplemental Revolving Commitments”), (iv) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this subsection 2.9 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing such other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with subsection 7.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such Lenders clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall makehave delivered a certificate to the Administrative Agent, obtain or increase certifying the amount of their the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this subsection 2.9 shall be in a minimum aggregate amount of at least $5.0 million and in integral multiples of $1.0 million in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this subsection 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of the Swing Line Lender or any Issuing Bank (in each case, such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of subsection 10.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit V-1 (any such increased Revolving Commitments, the “Increase Supplement”) or by each Additional Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an Lender substantially in the form attached hereto as Exhibit V-2 (the “Incremental FacilityLender Joinder Agreement”), as applicablethe case may be, by executing and delivering which shall be delivered to the Administrative Agent for recording in the Register. An Increase Supplement or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to the Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.9 (including to subsection 2.2(b) hereof) Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an Additional Credit Extension amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment Amendment specifying may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this subsection 2.9; provided, however, that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the First Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement, the Junior Lien Intercreditor Agreement or committed amountan Other Intercreditor Agreement), if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) the Incremental Commitments and any incremental loans drawn thereunder (xthe “Incremental Loans”) shall rank pari passu in right of payment with respect or (at the Borrower’s option) junior to the First Lien Loan Document Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the First Lien Loan Document Obligations and (II) so long as any Initial Term Loans being incurred are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to finance a Permitted Acquisition such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or a similar permitted Investment designated by Recovery Event or from Excess Cash Flow, to the Parent Borrower as a “Limited Conditionality Acquisition”, no Default extent the Net Cash Proceeds of such Asset Disposition or Recovery Event of Default has occurred and is continuing as of or such Excess Cash Flow are required to be applied to repay the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition Initial Term Loans pursuant to subsection 3.4(c) or (y) otherwised), as of on more than a ratable basis with the applicable Incremental Facility Activation Date, immediately prior to and Initial Term Loans (after giving effect to any Additional Credit Extension Amendment amendment in accordance with subsection 10.1(d)(v)); (including ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the making maturity date of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Commitment shall be no earlier than, and no Default or Event of Default has occurred and is continuing or scheduled mandatory commitment reduction in respect thereof shall result therefrom;
be required prior to the Initial Revolving Maturity Date; (Civ) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans maturity date and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any such Incremental Term Facility Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Facility Loans, as applicable (except in the case of other than an earlier maturity date and/or shorter weighted average life to maturity for customary high-yield bridge loans financings, which, subject to customary conditions (including no payment or bankruptcy event of default)conditions, would either be automatically be converted into or required to be exchanged for permanent Indebtedness that financing which does not have provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect Loan Maturity Date or the remaining weighted average life to maturity of the Collateral with the Initial Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of ); (v) the other Lenders in interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until loans made pursuant to the expiration of the then-current Interest Period, such other rate as Incremental Commitments shall be agreed upon between determined by the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to applicable Incremental Lenders; provided that in the contrary in this Agreement, each of event that the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to applicable interest rate margins for any term loans Incurred by the extent (but only to the extent) necessary to reflect the existence and terms of the Borrower under any Incremental Term Loans Loan Commitment or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without under any further amendment to this Agreement.Credit Facility Incurred pursuant to
Appears in 1 contract
Sources: First Lien Credit Agreement
Incremental Facilities. (a) The Parent Borrower Company 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 (such increase, the “Additional Revolving Commitments”) and/or any Additional Borrower and any (B) prior to the Term Loan Maturity Date the establishment of one or more Lenders new term loan commitments (including New Lendersthe “Additional Term Loan Commitments”), in an amount, with respect to clauses (A) may from time to time agree and (B) collectively, not in excess of Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between Maximum Incremental Facilities Amount and all such Lenders shall make, obtain or increase the amount of their Incremental Additional Term Loans or Loan Commitments and Additional Revolving Commitments obtained prior to such date), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableA) the date (each, an “Incremental FacilityIncreased Amount Date”)) on which Company proposes that the Additional Term Loan Commitments or Additional Revolving Commitments, as applicable, by executing and delivering 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 an Additional Credit Extension Amendment specifying and (iB) the amount identity of each Lender or other Person that is an Eligible Assignee (each, an “Additional Term Loan Lender” or “Additional Revolving Lender”, as applicable) to whom Company proposes any portion of such increase and the Facility Additional Term Loan Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Additional Revolving Commitments, together with as applicable, be allocated and the aggregate principal amount amounts of such allocations; provided that any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition provide all or a similar permitted Investment designated by portion of the Parent Borrower Additional Term Loan Commitments or Additional Revolving Commitments, as a “Limited Conditionality Acquisition”applicable, may elect or decline, in its sole discretion, to provide such commitment. Such Additional Term Loan Commitments or Additional Revolving Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Additional Term Loan Commitments or (y) otherwiseAdditional Revolving Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (2) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Additional Revolving Loan or Series of Additional Term Loans Loans, each of the conditions set forth in Section 3.2 shall be satisfied; (3) with respect to any request for Additional Term Loan Commitments or Incremental Additional Revolving Commitments pursuant thereto)Commitments, no Default or Event of Default has occurred as applicable, Company and is continuing or shall result therefrom;
(C) the Parent Borrower its Restricted Subsidiaries shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made compliance with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed 6.7 as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
Fiscal Quarter (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to all Additional Term Loan Commitments and Additional Revolving Commitments requested at such time); (4) the Additional Term Loan Commitments or Additional Revolving Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the relevant Additional Term Loan Lender and/or Additional Revolving Lender, each Credit Extension Amendment;
(I) without the consent of the Party and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Sections 2.20(e) and (xg); (5) each increase effected Company shall make any payments required pursuant to this paragraph Section 2.18(c) in connection with the Additional Term Loan Commitments or Additional Revolving Commitments, as applicable; and (6) 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 Additional Term Loans made on an Increased Amount Date shall be in designated a minimum amount separate series (a “Series”) of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in Additional Term Loans, for all purposes of this paragraph unless it agrees to do so in its sole discretionAgreement.
(b) Any New Lender that elects On any Increased Amount Date on which any Additional Term Loan Commitments of any Series are effective, subject to provide Commitments under an Incremental Facility the satisfaction of the foregoing terms and conditions, (i) each Additional Term Loan Lender of any Series shall make a Loan to the extent such consent would be required for Company (an assignment “Additional Term Loan”) in an amount equal to its Additional Term Loan Commitment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldSeries, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) each Additional Term Loan Lender of any Series shall become a Lender under this Agreement hereunder with respect to the Additional Term Loan Commitment of such Series and the Additional Term Loans of such Series made pursuant to an Additional Credit Extension Amendmentthereto.
(c) Unless otherwise agreed On any Increased Amount Date on which Additional Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the Revolving Lenders shall assign to each of the Additional Revolving Lenders, and each of the Additional Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans 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 will be held by the Administrative Agentexisting Revolving Lenders and Additional Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Additional Revolving Commitments to the Revolving Commitments, on (ii) each Incremental Facility Closing Date Additional Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Additional Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (iii) each Additional Revolving Lender shall become a Lender with respect to the Additional Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date Commitment and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)all matters relating thereto.
(d) Notwithstanding anything Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of each Increased Amount Date and in respect thereof (i) the Additional Revolving Commitments and Additional Revolving Lenders, the Series of Additional Term Loan Commitments and the Additional Term Loan Lenders of such Series, as applicable, and (ii) 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 contrary in assignments contemplated by this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoSection 2.24.
(e) The Closing Date Incremental Revolving terms and provisions of the Additional Term Loans and Additional Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, substantially consistent with the Term Loans and Term Loan Commitments. In any event (i) the Weighted Average Life to Maturity of all Additional Term Loans of any Series shall be provided no shorter than the Weighted Average Life to Maturity of Term Loans, (ii) the applicable Additional Term Loan Maturity Date of each Series shall be no shorter than the Latest Maturity Date of the Term Loans (as determined on the Closing Date as Incremental Revolving Commitments, subject date of incurrence of such Additional Term Loans) and (iii) the rate of interest applicable to the conditions Additional Term Loans of each Series shall be determined by Company and the applicable new Lenders and shall be set forth in Section 5 each applicable Joinder Agreement; provided that the interest rate margin (which shall be deemed to include all upfront fees or original issue discount (“OID”) (other than customary underwriting or arranger fees, and with respect to OID and upfront fees, determined based on an assumed four year life to maturity) or interest rate “floors” payable to all Additional Term Loan Lenders) in respect of any Additional Term Loan shall be the same extent as that applicable to the initial Term Loans, except that the interest rate margin (determined as above) in respect of any Additional Term Loan may exceed the interest rate margin (determined as above) for the Term Loans, respectively, by no more than 50 basis points, or if it does so exceed, such interest rate margin (determined as above) of the Term Loans shall be increased so that the interest rate margin (determined as above) in respect of such Additional Term Loans, is no more than 50 basis points higher than the interest rate margin (determined as above) of the Term Loans. The terms and provisions of the Additional Revolving Commitments and Additional Revolving Loans shall be the same (except for fees) with the Revolving Commitments and Revolving Loans, except as otherwise set forth herein or in the Joinder Agreement (it being acknowledged that Additional Revolving Commitments may be documented as an increase of the Revolving Commitments or as a separate Class of revolving commitments). Each Joinder Agreement may, without consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other Credit Documents as may be necessary or appropriate, in the opinion of Administrative Agent, to effect the provision of this Section 2.24.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Covanta Holding Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions after the Closing Date, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Commitments; provided that the aggregate amount of the Incremental Commitments established under this Section 2.21 on any date, together with the aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) on such date, shall not exceed an “amount equal to the Base Incremental Facility”)Amount in effect on such date, and an additional amount subject to the Maximum Incremental Amount as of such date. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Facility or Facilities involvedCompany proposes to become an Incremental Lender, (ii1) the applicable Incremental Facility Closing Dateif such Person is not then a Lender, (iii) the applicable Borrower(s) must be an Eligible Assignee and (iv2) in the case of an Incremental Revolving Commitment, must be reasonably satisfactory to the Administrative Agent, 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, except as otherwise set forth herein, 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; provided that the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Company and the Incremental Revolving Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term LoansFacility and the Incremental Term Loans to be made thereunder shall be, (w) except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the Term Maturity Date, (x) B-1 Commitments or Term B-2 Commitments and the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental related Term Loans; provided, that:
provided that (Ai) the aggregate principal amount (or committed amountupfront fees, if applicable) of all Incremental Term Loans interest rates and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect amortization schedule applicable to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred Facility and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to determined by the applicable Additional Credit Extension Amendment (including Company and the making of any Incremental Term Loans and any Lenders providing the relevant Incremental Revolving Commitments thereunder Term Commitments, (and assuming, ii) except in the case of any Additional Credit Extension Amendment with respect an Incremental Term Facility effected as an increase to Incremental Revolving Commitments that such commitments are fully drawn) without the netting an existing Class of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))Term Loans, with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the weighted average life to maturity of the Initial Term Facility Loans with the latest Maturity Date (except in calculated based on the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity of such Term Loans as of the date of funding thereof (giving effect to any amendments thereto)), (iii) if the weighted average yield relating to any Incremental Term Loan exceeds the weighted average yield relating to any Class of Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (to be determined by the Initial Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase in the interest rate floor applicable to such Class of Term FacilityLoans would result in an increase in an interest rate then in effect for such Class of Term Loans hereunder);
(F) all ), then the Applicable Rate relating to such Class of Term Loans shall be adjusted so that the weighted average yield relating to such Incremental Term Loans and shall not exceed the weighted average yield relating to such Class of Term Loans by more than 0.50%; provided that, with respect to any Revolving Loans made in respect Series of Incremental Revolving Commitments Term Loans (the “Declining Series”), the benefit of this clause (iii) shall rank pari passu in right not apply with respect to the incurrence of payment and right of security other Incremental Term Loans if the applicable Incremental Facility Amendment in respect of the Declining Series so provides and (iv) no Incremental Term Maturity Date shall be earlier than the latest Maturity Date with respect to any Term Loan. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Term Loans Liens on the Collateral securing the other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company, the Borrowing Subsidiaries (G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(athe case of Incremental Revolving Facilities), all terms of any each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph effective unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment no Default or Event of such Loans or Commitments pursuant to Section 10.6 Default (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andor, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving LoansFacility, no Event of Default under clause (a), (b), (h) or (i) of Article VII) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the Issuing Lenders representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Swingline Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such 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) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.21.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall become constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender under this Agreement pursuant and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Additional Credit Extension Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cg) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or may by written notice to the Administrative Agent at any Additional Borrower and any one or more Lenders (including New Lenders) may from time after the Closing Date elect to time agree that such Lenders shall make, obtain or request an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” ”) by an aggregate amount not to exceed $100,000,000, and, in each case, not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent), and any facility under 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 such Incremental Term Loans or the Borrower proposes that the Incremental Revolving Commitments are made availableshall be effective, which shall be a date (i) not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) at least 90 days prior to the Revolving Commitment Termination Date and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental FacilityRevolving Loan Lender”), as applicable, by executing ) to whom the Borrower proposes any portion of such Incremental Revolving Commitments be allocated and delivering to the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such Incremental Revolving Commitments in its sole discretion and any Lender approached to provide all or a portion of the Incremental Revolving Commitments may elect or decline, in its sole discretion, to provide an Additional Credit Extension Amendment specifying (i) the amount Incremental Revolving Commitment. Such Incremental Revolving Commitments shall become effective as of such increase and the Facility or Facilities involved, Increased Amount Date; provided that: (ii1) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist under the Loan Documents, and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing (each as defined in the Existing Credit Agreement) shall exist under the Existing Credit Agreement, on such Increased Amount Date before or shall result therefrom;
after giving effect to such Incremental Revolving Commitments; (C2) the Parent Administrative Agent shall have received certified copies of resolutions of the Board of Directors of the Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any authorizing such Incremental Revolving Commitments thereunder and related amendments to the Loan Documents; (and assuming, in 3) the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without shall be effected pursuant to one or more Joinder Agreements executed and delivered by the netting Borrower, the Incremental Revolving Loan Lender and the Administrative Agent, and each of proceeds thereof which shall be recorded in the Register and any Permitted Acquisition made with each Incremental Revolving Loan Lender shall be subject to the proceeds thereof)), with the financial covenants requirements set forth in Section 7.1, recomputed as of 2.20(c); and (4) the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) representations and warranties contained in no event Article IV hereto shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, respects as of such Increased Amount Date except and solely to the extent required 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 as of such earlier date (it being understood that to the extent any such representation and warranty is already qualified by the lenders providing materiality or material adverse effect, such representation and warranty will be true and correct in all respects). On any Increased Amount Date on which Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichRevolving Commitments are effected, subject to customary conditions the satisfaction of the foregoing terms and conditions, (including no payment or bankruptcy event a) each of defaultthe existing Lenders with Revolving Commitments shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than such interests in the Initial Term Facility);
(F) all Incremental Term Loans and any applicable Revolving Loans made outstanding on such Increased Amount Date as shall be necessary in respect order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of to the Collateral with the Term Loans and the then-existing Revolving Loans and none of the obligors or guarantors with respect thereto Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Person that is not Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan Party;
and (Gc) except each Incremental Revolving Loan Lender shall become a Lender with respect to pricing the Incremental Revolving Commitment and fees or all matters relating thereto. In addition, each Revolving Lender agrees that the Administrative Agent may (subject to the consent of the Borrower ) take such additional actions as otherwise set forth it deems reasonably necessary to effect the foregoing and such other adjustments to ensure that the Revolving Exposure is allocated ratably in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent accordance with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory Revolving Commitments after giving effect to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect addition of such Incremental Term Facility elect lesser payments;
Revolving Commitments. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (Hx) any the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders and (y) the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24. The terms and provisions of the Incremental Revolving Loans in respect thereof shall be pursuant identical to the terms hereof otherwise applicable then-existing Revolving Loans. Any Incremental Revolving Loans will be documented solely as an increase to the then-existing Revolving Commitments without any change in terms, other than any change that is more favorable to the Revolving Facility Lenders and such Incremental applies equally to all Revolving Commitments shall become Loans and Revolving Commitments under this Commitments. Each Joinder Agreement after giving effect to such Additional Credit Extension Amendment;
(I) may, without the consent of any Lender other than the Administrative Agentapplicable Incremental Revolving Loan Lender, (x) each increase effected pursuant effect such amendments to this paragraph shall be in a minimum amount of at least $50,000,000 Agreement and (y) no more than five Incremental Facility Closing Dates the other Loan Documents as may be selected by necessary or appropriate, in the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment opinion of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in to effect the case provisions of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension AmendmentSection 2.24.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (PVH Corp. /De/)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions, by written notice to the Administrative Agent, request the establishment, during the Revolving Availability Period, of Incremental Revolving Commitments, provided that the aggregate amount of all the Incremental Revolving Commitments established hereunder during the term of this Agreement shall not exceed $200,000,000. Each such notice shall specify (including New Lendersi) the date on which the Company proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may from time be agreed to time agree that by the Administrative Agent) after the date on which such Lenders shall makenotice is delivered to the Administrative Agent, obtain or increase and (ii) the amount of their the Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “being requested (it being agreed that (A) any Lender approached to provide any Incremental Revolving Commitments” and any facility under which Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Revolving Commitment and (B) any Person that the Company proposes to become an Incremental Revolving Lender, if such Person is not then a Revolving Lender, must be an Eligible Assignee and must be approved by the Administrative Agent, each Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld)).
(b) The terms and conditions of any Incremental Revolving Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Company determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments are or Revolving Loans and other extensions of credit made availablethereunder, an “Incremental Facility”)such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, by executing and delivering shall be increased to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount equal such interest rate or fees payable in respect of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event Revolving Loans and other extensions of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliancecredit made thereunder, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment may be; provided further that the Company, at its election, may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the other Revolving Commitments.
(c) The Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by ▇▇▇▇▇▇ USA, the Borrowers, each Incremental Revolving Lender providing such Incremental Revolving Commitments, the Administrative Agent, each Issuing Bank and the Swingline Lender; provided that no Incremental Revolving Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such commitments are fully drawnIncremental Revolving Commitments (and assuming that the full amount of such Incremental Revolving Commitments shall have been funded as Loans on such date), no Default shall have occurred and be continuing (disregarding any Default that would arise as a result of any portion of the assumed Borrowings on such date exceeding the Borrowing Base then in effect), (ii) without on the netting date of proceeds effectiveness thereof and any Permitted Acquisition after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made with on such date, the proceeds thereof)), with the financial covenants representations and warranties of each Loan Party set forth in Section 7.1the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, recomputed 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) the Borrowers shall make any payments required to be made pursuant to Section 2.17 in connection with such Incremental Revolving Commitments and the related transactions under this Section and (iv) ▇▇▇▇▇▇ USA and the Borrowers shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of 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 Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Lender” (and a Lender in respect of Revolving Commitments and Revolving Loans) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Revolving Commitments and Revolving Loans) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Revolving Commitments and Revolving Loans) hereunder and under the other Loan Documents, and (ii) (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure and the Revolving Total Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Revolving Commitments shall be deemed to be repaid, (ii) each Incremental Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Revolving Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Revolving Commitments, the Borrowers shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in Borrowing Requests delivered by each Borrower that shall have any Existing Revolving Borrowings to the Administrative Agent in accordance with Section 2.03 (and each applicable Borrower shall deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) and (vii) each applicable Borrower shall pay each Revolving Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the applicable Borrower pursuant to the provisions of Section 2.17 if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the most recently ended fiscal quarter Interest Period relating thereto.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.22(a) and of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than Revolving Commitments, in each case advising the weighted average life to maturity Lenders of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect details thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of effectiveness of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.22(e).
Appears in 1 contract
Sources: Credit Agreement (Murphy USA Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Loan Commitments, an “in each case, in minimum increments of the Dollar Amount of $10,000,000. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Facility”)Revolving Commitments or the Incremental Term Loan Commitments, as applicable, by executing and delivering 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, and (B) the amount of the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Company proposes to become an Additional Credit Extension Amendment specifying Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to (i) the amount Administrative Agent (except in the case of such increase and the Facility Person that is an Affiliate of a Lender or Facilities involvedan Approved Fund) and, (ii) in the applicable case of any proposed Incremental Facility Closing DateRevolving Lender, the Issuing Lenders and the Swingline Lender, in each case of clauses (iii) the applicable Borrower(si) and (ivii), such approval not to be unreasonably withheld, and (z) none of the Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate Dollar Amount (calculated based on the Exchange Rate in effect on the date such Indebtedness was incurred, in the case of Incremental Term Loan Commitments, or first committed, in the case of Incremental Revolving Commitments) of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20 shall not exceed $200,000,000. No consent of any Lender (other than the Lenders participating in the Incremental Revolving Commitment or Incremental Term Loan Commitment) shall be required for any increase pursuant to this Section 2.20.
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Maturity Date (but may have amortization and/or customary prepayments prior to such date), (wii) shall be treated substantially the same as (and in any event no more favorably than) the applicable Incremental Term Maturity Date, Revolving Loans and (iii) shall have the same Guarantees as the Revolving Loans; provided that (x) the amortization schedule for such terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans. Any Incremental Term Loan Commitments established pursuant to an Incremental Facility Agreement that have identical terms and Incremental Revolving Commitmentsconditions, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to and any Incremental Term Loans being incurred made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) The Incremental Commitments shall be effected pursuant to finance a Permitted Acquisition one or a similar permitted Investment designated more Incremental Facility Agreements executed and delivered by the Parent Borrower as Borrowers, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate a Business Acquisition permitted by this Agreement for which the Company has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”, ) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Default or Event of Default has shall have occurred and is be continuing as of on the date of entry into the applicable acquisitioneffectiveness thereof, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, both immediately prior to and immediately after giving effect (including pro forma effect) to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Obligor set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by materiality or “Material Adverse Effect”, in all respects) on and as of such date, (iii) after giving effect to any Additional Credit Extension Amendment (including such Incremental Commitments and the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments to be made on the date of effectiveness thereof, that such commitments Incremental Revolving Commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with drawn but excluding the proceeds thereof)of any such Incremental Commitments for purposes of netting cash and Permitted Investments in the calculation of the Leverage Ratio), the Company shall be in pro forma compliance with the financial covenants set forth in Sections 6.14 and 6.15, (iv) the Borrowers shall make any payments required to be made pursuant to Section 7.12.16 in connection with such Incremental Commitments and the related transactions under this Section, recomputed and (v) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the last day date of execution of the most recently ended fiscal quarter definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the Parent Borrower for which financial statements are available;
date of the borrowing of such Incremental Term Loans, no Event of Default under clauses (Da), (b), (h), (i) or (j) of Article VII is in no event existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties of each Obligor set forth in the Loan Documents shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respectsrespects (or, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the date of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, (4) as of the date of the borrowing of such Incremental Term Loans, customary high-yield bridge loans which, subject to customary conditions “Sungard” representations and warranties (including no payment or bankruptcy event of default), would either automatically be converted into or required with such representations and warranties to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than reasonably determined by the Initial Lenders providing such Incremental Term Facility);
Loans) shall be true and correct in all material respects (For, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) all immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect (5) as of the Collateral date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Company shall be in pro forma compliance with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise financial covenants set forth in this Section 2.25(a)Sections 6.14 and 6.15. Each Incremental Facility Agreement may, all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) 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 and no consent of any Lender (xother than the Lenders participating in the increase or any Incremental Term Loan) each shall be required for any increase effected in Commitments or Incremental Term Loan pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.20.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the total Revolving Commitments shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Revolving Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Lender with a Commitment (immediately prior to giving effect to such Incremental Revolving Commitments) shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders with Revolving Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the relevant Borrower in an amount equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Company referred to in paragraph (a) above and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the conditions set forth in Section 5 be made pursuant to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementparagraph (e) above.
Appears in 1 contract
Sources: Credit Agreement (Fei Co)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased increase, the “New Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, ”) and/or (B) an “Incremental Facility”), as applicable, by executing and delivering increase to the Administrative Agent an Additional Credit Extension Amendment specifying existing Delayed Draw Term Facility and/or the establishment of one or more new term loan commitments in Dollars (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental “New Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments”, together with the aggregate principal amount of any Permitted New Revolving Commitments, the “Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality AcquisitionCommitments”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect by up to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum an aggregate amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each such that after giving effect thereto the total aggregate amount of the Revolving Facility shall be no greater than $3,500,000,000 and (ii) with respect to the Delayed Draw Term Facility or any other New Term Commitments, such that after giving effect thereto the total aggregate amount of the Delayed Draw Term Facility and any New Term Commitments and the loans in respect thereof shall be no greater than $2,000,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall borrow Revolving Loans under be effective, which shall be a date not less than ten (10) Business Days after the relevant increased Revolving date on which such notice is delivered to the Administrative Agent. With respect to any Incremental Commitments, (x) any Incremental Commitments from each Lender participating on any Increased Amount Date shall be in the relevant increase minimum aggregate amount of $25,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an amount determined by reference Incremental Commitment and (z) any Lender or other Person that is an Eligible Assignee (each, a “New Revolving Lender” or “New Term Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the amount approval of each Type of Loan of the Borrower and the Administrative Agent (such Borrower (approval not to be unreasonably withheld or delayed), and, in the case of Eurocurrency Loans or Term Benchmark Loansa New Revolving Commitment, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if the Issuing Lenders (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees thatwhich approvals shall not be unreasonably withheld), on each Incremental Facility Closing Date, this Agreement shall be amended to the extent unless such New Revolving Lender is an existing Lender (but only to the extentother than a Defaulting Lender) necessary to reflect the existence and terms with a Revolving Commitment at such time or such New Term Lender is an existing Lender or an Affiliate of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoan existing Lender.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or At any Additional Borrower time during the period from and any one or more Lenders (including New Lenders) may from time to time agree after the Closing Date through but excluding the date that such Lenders shall make, obtain or increase is the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) at the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) option of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent Borrowers (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 2.14(b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $25,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than two occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $200,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party,
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of Governors,
(iv) Borrowers have delivered to Agent updated pro forma Projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the 12 months (on a month-by-month basis) immediately following the proposed date of the applicable Increase,
(v) Borrowers have delivered to Agent an officer’s certificate with corresponding calculations certifying and demonstrating that as of the date of such Increase (i) after taking into account all Indebtedness of the Borrowers other than the Obligations, the Borrowers are able to incur Indebtedness under this Agreement equal to the Maximum Revolver Amount after giving effect to such Increase without violating Section 1011 of the KAC Indentures, and (ii) the Indenture Credit Facilities Cap exceeds the sum of (x) the Maximum Revolver Amount after giving effect to such Increase and (y) all Indenture Credit Facilities Indebtedness other than the Obligations, by an amount equal to or greater than 10% of the Maximum Revolver Amount after giving effect to such Increase; and
(vi) (v) the interest rate margins with respect to the Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same extent as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the initial applicable Increase Date (as defined below).
(c) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolver Commitments and without any further amendment Maximum Revolver Amount pursuant to this AgreementSection 2.14.
(d) Each of the Lenders having a Revolver Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(e) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount 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 any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) Following the Agreement Date, AGCO may from time to time agree through the Maturity Date, propose that such Lenders shall make(a) term loans in U.S. Dollars or the Equivalent Amount in the requested Offshore Currency be made to it or any of the other Borrowers in accordance with this Section (each, obtain an “Incremental Term Loan”) or increase (b) the aggregate amount of their Incremental Term Loans or Revolving Loan Commitments be increased (any such increased Revolving Commitments, each an “Incremental Revolving Commitments” and any facility under which such Commitment”) by delivering a Notice of Incremental Facility to the Administrative Agent substantially in the form of Exhibit E hereto (a “Notice of Incremental Facility”), specifying (subject to the restrictions set forth in clause (b) below) therein the (i) amount of the Tranche of Incremental Term Loans or Incremental Revolving Commitments are made availablerequested (which Tranche shall, an “unless otherwise approved by the Lenders making such Incremental Facility”)Term Loans or providing such Incremental Revolving Commitments, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the be in a minimum principal amount of such increase $100,000,000 and integral multiples of $50,000,000 in excess thereof (or in each case the Facility or Facilities involvedEquivalent Amount in the requested Offshore Currency)), (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the requested closing date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any proposed Incremental Term Loans or Incremental Revolving Commitments pursuant thereto(which shall be at least 15 Business Days from the date of delivery of the Notice of Incremental Facility), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Ciii) the Parent Borrower shall interest rate to be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect applicable to the applicable Additional Credit Extension Amendment (including the making of any all Incremental Term Loans in such Tranche, and (iv) the amount of any upfront or closing fees to be paid by the Borrowers to the Lenders funding such Tranche of Incremental Term Loans or providing such Incremental Revolving Commitments thereunder Commitments. Each Notice of Incremental Facility delivered by AGCO shall be binding upon all Loan Parties. At the time of delivery of the Notice of Incremental Facility, AGCO shall also deliver to the Administrative Agent a certificate of a Responsible Employee of AGCO certifying (A) that AGCO and assuming, its Subsidiaries are in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true 6.10 hereof before and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans Loan Borrowing or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided (as if fully drawn) on a pro forma basis as of the Closing Date as Incremental Revolving Commitments, subject end of the most recent Fiscal Quarter for which financial statements have been delivered to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments Lenders, and without any further amendment to this Agreement(B) that no Default or Event of Default then exists or would be caused thereby.
Appears in 1 contract
Sources: Credit Agreement (Agco Corp /De)
Incremental Facilities. (a) The Parent Subject to the terms of the NBA Consent Letter in each event, the Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Agent, request the establishment, during the Availability Period, of Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $100,000,000 during the term of this Agreement. Each such notice shall specify (including New LendersA) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may from time be agreed to time agree that by the Agent) after the date on which such Lenders shall makenotice is delivered to the Agent, obtain or increase and (B) the amount of their the Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitments” and any facility under which Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Agent, which approval shall not be unreasonably withheld or delayed).
(b) The terms and conditions of any Incremental Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and the Loans and other extensions of credit made thereunder; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments are or Loans and other extensions of credit made availablethereunder, an “Incremental Facility”)such increase shall be permitted if the interest rate or fees payable in respect of the other Commitments or Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Commitments or Loans and other extensions of credit made thereunder, as the case may be.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by executing the Borrower, each Incremental Lender providing such Incremental Commitments and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying Agent; provided that no Incremental Commitments shall become effective unless (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of on the date of entry into the applicable acquisitioneffectiveness thereof, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, both immediately prior to and immediately after giving effect to any Additional Credit Extension Amendment such Incremental Commitments (including after giving effect to the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretothereunder to be made on such date), no Default or Event of Default has shall have occurred and is continuing or shall result therefrom;
be continuing, (Cii) on the Parent Borrower shall be in compliance, as date of any Incremental Facility Activation Date, on a pro forma basis (including effectiveness thereof and after giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans thereunder to be made on such date, the representations and any Incremental Revolving Commitments thereunder warranties of the Borrower set forth in the Loan Documents shall be true and correct (A) in the case of the representations and assumingwarranties 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 Additional Credit Extension Amendment with respect such representation and warranty that expressly relates to Incremental Revolving Commitments that a prior date, in which case such commitments are fully drawn) without the netting of proceeds thereof representation and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event warranty shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be so true and correct in all material respects, except on and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
prior date, (Hiii) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments, the Maximum Available Amount shall not exceed the NBA Debt Limit at such time, (Iiv) the Borrower shall make any payments required to be made pursuant to Section 2.13 in connection with such Incremental Commitments and the related transactions under this Section, and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of the Administrative Agentany Lender, (x) each increase effected pursuant effect such amendments to this paragraph shall be in a minimum amount of at least $50,000,000 Agreement and (y) no more than five Incremental Facility Closing Dates the other Loan Documents as may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans necessary or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andappropriate, in the case opinion of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to give effect to the Revolving Facility, each Borrower shall 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 amount provisions of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section.
(d) Notwithstanding anything to Upon the contrary in this Agreementeffectiveness of an Incremental Commitment of any Incremental Lender, each of the parties hereto hereby agrees that, on each (i) such Incremental Facility Closing Date, this Agreement Lender shall be amended deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the extent (but only to the extent) necessary to reflect the existence rights of, and terms benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent Lenders hereunder and the Parent Borrower and furnished to under the other parties hereto.
Loan Documents, and (eii) The Closing Date (A) such Incremental Revolving Commitments Commitment shall be provided on constitute (or, in the Closing Date as event such Incremental Revolving CommitmentsLender already has a Commitment, subject to shall increase) the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.Commitment of such
Appears in 1 contract
Sources: Credit Agreement
Incremental Facilities. The Borrower may request, from time to time, on any Business Day prior to the date that is six (a6) The Parent Borrower months prior to the Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit J or in such other form reasonably acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments by an amount not in excess of $150,000,000 (any such increase, the “Incremental Revolving Credit Commitments”) so that the aggregate Revolving Credit Commitments are not in excess of $300,000,000 and not less than $5,000,000 individually and/or any Additional Borrower and any (ii) the establishment of one or more Lenders (including New Lenders) may from time new term loan commitments or an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental existing Term Loans or Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Term Loan Commitments” ”), by an amount not in excess of $75,000,000 in the aggregate and any facility under which such not less than $5,000,000 individually. As of the Second Amendment Effective Date, all Incremental Term Loans Loan Commitments have been fully utilized. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Revolving Commitments are made available, an “Incremental Facility”)Term Loan Commitments, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedshall be effective, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) identity of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness ofeach Lender, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a other Person that is not a an Eligible Assignee (each, an “Incremental Revolving Loan Party;
(G) except with respect to pricing and fees Lender” or an “Incremental Term Loan Lender”, as otherwise set forth in this Section 2.25(aapplicable), all terms to whom the Borrower proposes any portion of any such Incremental Revolving Credit Commitments or Incremental Term FacilityLoan Commitments, if not consistent with the applicable existing Term Facilityas applicable, shall be determined between the Parent Borrower allocated and the lenders for amount of such Incremental Term Facility and reasonably satisfactory to the Administrative Agentallocations; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility Administrative Agent may elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant or decline to the terms hereof otherwise applicable to the Revolving Facility and arrange such Incremental Revolving Credit Commitments shall become Revolving or Incremental Term Loan Commitments under this Agreement after giving effect in its sole discretion and any Lender approached to such Additional Credit Extension Amendment;
(I) without the consent provide all or a portion of the Administrative AgentIncremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects , to provide Commitments under an Incremental Facility Revolving Credit Commitment or an Incremental Term Loan Commitment (i) and any Lender may require additional time to the extent review such consent would be required for Commitment Amount Increase Request as needed to determine whether to provide an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to Credit Commitment or an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Term Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increasedCommitment). The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Any Incremental Term Loans or Revolving Commitments evidenced thereby. Any made on an Increased Amount Date shall be designated a separate series (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement unless such amendment may be Incremental Term Loans are being effected in writing by the Administrative Agent and the Parent Borrower and furnished as an increase to the other parties heretoexisting Term Loans.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving CommitmentsTerms Loans, “Incremental Term Loans”)) or Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent Agents an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Increased Facility Closing Date, Date and (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (wA) the applicable Incremental Term Maturity Date, (xB) the amortization schedule for such Incremental Term Loans Loans, and (yC) the Applicable Margin for such Incremental Term Loans); provided, that:
that (A1) upon the aggregate principal amount (or committed amount, if applicable) effectiveness of all each Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition Loan or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental increase in Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
; (C2) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including Pro Forma Basis after giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making incurrence of any Incremental Term Loans and any Incremental or increased Revolving Commitments thereunder Commitments, (and assuming, assuming in the case of any Additional Credit Extension Amendment with respect to Incremental an increase in the Revolving Commitments that the full drawing of such commitments are fully drawnincreased Revolving Commitments and, without duplication, after giving effect to (x) without the netting borrowing of proceeds thereof any Revolving Loans on such day under such increased Revolving Commitments, (y) other permitted pro forma adjustment events and (z) any Permitted Acquisition made permanent repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with the proceeds thereof)borrowing), the Borrower is in compliance with the financial covenants set forth in Section 7.1; (3) in the case of an incurrence of an Incremental Term Loan, recomputed as the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (4) upon the effectiveness of each incurrence of any Incremental Term Loans or increase in Revolving Commitments each of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, respects (except and solely to the extent (i) any such representations and warranties relate, by their terms, to a specific date, in which case such representations and warranties shall be true and correct in all material respects on and as of such specific date and (ii) any such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and (5) the Administrative Agent shall have received all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to real property Collateral as required by applicable law and as reasonably required by the lenders providing such Incremental Facility;
Administrative Agent to comply with applicable Law or the requirements of its regulators. Notwithstanding the foregoing, (Ei) the weighted average life to maturity aggregate amount of any Incremental Term Facility shall be no earlier than the weighted average life to maturity borrowings of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of obtained after the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be Closing Date pursuant to the terms hereof otherwise applicable to the Revolving Facility this paragraph shall not exceed $50,000,000 and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(Iii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no 20,000,000. 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 New Lender that elects to provide Commitments under an Incremental Facility additional bank, financial institution or other entity which, with the consent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to ) of the Borrower and the Administrative Agent andAgent, the Issuing Lenders (in the case of any Incremental a Revolving Loans, the Issuing Lenders Facility only) and the Swingline Lender and (iiin the case of a Revolving Facility only), elects to 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, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender under 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 pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to the Revolving Facility, each the Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Eurodollar Loans, of each Eurocurrency Tranche or Term Benchmark Eurodollar Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Eurodollar Base Rate applicable to any Eurocurrency Eurodollar Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Eurodollar Base Rate then applicable to the Eurocurrency Eurodollar Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Eurodollar Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Commitment Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Loan Commitments, an “provided that the aggregate amount of all the Incremental Facility”)Commitments established at any time shall not exceed the Permitted Incremental Amount at such time. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in complianceIncremental Term Loan Commitments, as of applicable, being requested (it being agreed that (1) any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect Lender approached to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment and (2) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and assumingmust be reasonably acceptable to the Administrative Agent and, in the case of any Additional Credit Extension Amendment with respect to proposed Incremental Revolving Lender, each Issuing Bank).
(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, it being agreed, however, that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made in connection with the proceeds thereof))effectiveness of any Incremental Revolving Commitment, with subject to the financial covenants consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Margin and fees payable for the account of the Revolving Lenders pursuant Section 2.10, so long as such increase is effective for the benefit of all the Revolving Lenders hereunder on equal terms. The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in Section 7.1the applicable Incremental Facility Agreement, recomputed as identical to those of the last day of Tranche B Term Loan Commitments and the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
Tranche B Term Loans; provided that (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ei) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Tranche B Terms Loans and (ii) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Tranche B Term Facility);Loan Maturity Date.
(Fc) all The Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment be effected pursuant to one or more Incremental Facility Agreements executed and right of security in respect of delivered by Holdings, the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Borrower, all terms of any each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Incremental Commitments and the making of Loans and other Credit Extension Amendment;
Extensions thereunder to be made on such date, (Iii) on the date of effectiveness thereof, the representations and warranties of each Credit Party set forth in the Credit 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 Loans and other Credit Extensions thereunder to be made on the date of effectiveness thereof Holdings and the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.7 (determined in accordance with Section 1.2(b)) as of the last day of the Fiscal Quarter most recently ended on or prior to such date for which financial statements are available (provided that, for purposes of determining the Leverage Ratio under Section 6.7(b), the Consolidated Total Debt shall be determined on a pro forma basis as of such date), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.17(c) in connection with such Incremental Commitments and the related transactions under this Section 2.23, (v) any Collateral Documents (including any Mortgages) shall have been amended or modified as shall reasonably be requested by the Administrative Agent or the Collateral Agent to secure the increased aggregate amount of Obligations after giving effect to such Incremental Commitments and (vi) Holdings and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, 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 give effect to the provisions of this Section 2.23 (x) each including any increase effected referred to in Section 2.23(b)). Any Incremental Term Loan Commitments established pursuant to this paragraph an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be in designated as a minimum amount separate series (each, a “Series”) of at least $50,000,000 Incremental Term Loan Commitments and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in Term Loans for all purposes of this paragraph unless it agrees to do so in its sole discretionAgreement.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the aggregate amount of the Revolving Commitments shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Commitment, and the Pro Rata Shares of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Pro Rata Shares after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) On the date of effectiveness of Incremental Term Loan Commitments of any Series, subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of such Series shall make a loan to the Borrower in an amount equal to such Lender’s Incremental Term Loan Commitment of such Series.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Pro Rata Shares of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.23(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or (ii) the establishment of Incremental Facility”)Term Loan Commitments. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loan 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 executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoan Commitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, Commitment or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichLoan Commitment may elect or decline, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects , to provide Commitments under such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Facility (i) to the extent Lender, if such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent Person is not to be unreasonably withheldthen a Lender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, the Issuing Lenders Banks and the Swingline Lender and (z) none of the Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20 shall not exceed the sum of (A) $75,000,000 plus (B) unlimited additional Incremental Revolving Commitments, Incremental Term Loan Commitments so long as, after giving pro forma effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full, but excluding the proceeds of any such Incremental Term Loans, Incremental Revolving Commitments for purposes of netting cash and Permitted Investments in the calculation of the Senior Secured Net Leverage Ratio), the Senior Secured Net Leverage Ratio shall not exceed 2.50 to 1.00 (other than to the extent such Incremental Revolving Commitments and/or Incremental Term Loan Commitments are incurred pursuant to this clause (B) concurrently with the incurrence of Incremental Revolving Commitments and/or Incremental Term Loan Commitments in reliance on clause (A) of this sentence, in which case the Senior Secured Net Leverage Ratio shall be permitted to exceed 2.50 to 1.00 to the extent of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments and/or Incremental Term Loan Commitments may be incurred pursuant to this clause (B) prior to utilization of the amount set forth in clause (A) of this sentence.
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the latest of the Maturity Date or any other then existing Incremental Term Loan Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall become have a Lender under this Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any other then existing Term Loans, (iii) shall be treated substantially the same as (and in any event no more favorably than) the revolving Loans and (iv) shall have the same Guarantees as and shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Revolving Loans (except in the case of clause (iii) and (iv) to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans. Any Incremental Term Loan Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time.
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent, on each Incremental Facility Closing Date ; provided that (other than with respect to the Revolving Facilityincurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless:
(i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect (including pro forma effect) to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date;
(ii) on the date of effectiveness thereof, the representations and warranties of each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating Loan Party set forth in the relevant increase Loan Documents shall be true and correct in an amount determined all material respects (or, if qualified by reference to the amount of each Type of Loan materiality or “Material Adverse Effect”, in all respects) on and as of such Borrower date;
(andiii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of Eurocurrency any Incremental Revolving Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn but excluding the proceeds of any such Incremental Commitments for purposes of netting cash and Permitted Investments in the calculation of the Senior Secured Net Leverage Ratio or Total Leverage Ratio), the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11;
(iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section;
(v) the Administrative Agent shall have received documents and opinions consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrower hereunder after giving effect to such increase;
(vi) any new Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Incremental Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(vii) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Benchmark Loans, no Event of each Eurocurrency Tranche or Term Benchmark TrancheDefault under clauses (a), as applicable) which would then have been outstanding from such Lender if (b), (h), (i) each or (j) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such Typeborrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii3) the aggregate amount representations and warranties of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders Party set forth in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable Loan Documents shall be true and correct in all material respects (or, until in the expiration case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the then-current Interest Perioddate of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, (4) as of the date of the borrowing of such other rate as Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such Incremental Term Loans) shall be agreed upon between true and correct in all material respects (or, in the Parent case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and (5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the relevant Lender)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 and no consent of any Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only to the extent) necessary to reflect the existence or Lenders in respect of Commitments and terms Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder (it being understood that such Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by Lender shall deliver the documentation required under Section 2.17(f) to the Administrative Agent and the Parent Borrower Borrower) and furnished to under the other parties heretoLoan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the revolving Commitment of such Incremental Lender and (B) the total revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such revolving Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on On the Closing Date as date of effectiveness of any Incremental Revolving Commitments, subject each Lender with a revolving Commitment (immediately prior to giving effect to such Incremental Revolving Commitments) shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders with revolving Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment. (f) Subject to the terms and conditions set forth herein and in Section 5 the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the same extent applicable Borrower in an amount equal to such Incremental Term Loan Commitment on the initial Revolving Commitments and without any further amendment to this date specified in such Incremental Facility Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or At any Additional Borrower time during the period from and after the Closing Date through but excluding the date that is the four-year anniversary of the Closing Date, at the option of Borrowers 88 166856726_9 (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is an Eligible Transferee or otherwise reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than two occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $10,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount: (i) Agent or Borrowers have obtained the commitment of one or more Lenders (including New Lendersor other prospective lenders who are Eligible Transferees or otherwise reasonably satisfactory to Agent and Borrowers) may from time reasonably satisfactory to time agree that Agent and Borrowers to provide the applicable Increase and any such Lenders shall make(or such prospective lenders), obtain or increase the amount of their Incremental Term Loans or Revolving Commitments Borrowers, and Agent have signed a joinder agreement to this Agreement (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental FacilityIncrease Joinder”), as applicablein form and substance reasonably satisfactory to Agent, by executing to which such Lenders (or prospective lenders), Borrowers, and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedare party, (ii) each of the applicable Incremental Facility Closing Dateconditions precedent set forth in Section 3.2 are satisfied, (iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the applicable Borrower(s) Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of Governors, (iv) in the case of Incremental Term Loans, Borrowers have delivered to Agent updated pro forma Projections (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred applicable Increase) for the Loan Parties and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (including giving pro forma effect on a month-by-month basis) immediately following the proposed date of the applicable Increase, (v) The interest rate margins with respect to the Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the applicable Additional Credit Extension Amendment Increase Date (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereofas defined below)). Any Increase Joinder may, with the financial covenants set forth in consent of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 7.12.14; and (vi) if deemed necessary by Agent, recomputed as Agent shall have received the written approval of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Third-Party Term Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders Agent for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be Increase pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension AmendmentIntercreditor Agreement.
(c) Unless otherwise agreed by the Administrative Agentspecifically provided herein, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Typeall references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) unless the aggregate amount of each such Typecontext otherwise requires, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed include Revolving Loans made pursuant to the preceding sentence shall equal increased Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14. (d) Each of the Eurocurrency Rate then applicable Lenders having a Revolver Commitment prior to the Eurocurrency Loans Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or Adjusted Term SOFR Rate for Term Benchmark Loansadditional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), as applicableand such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, of at the other Lenders principal amount thereof, such interests in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Revolving Loans and participation interests in Letters of the then-current Interest Period, Credit on such other rate Increase Date as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary necessary in this Agreement, each of the parties hereto hereby agrees order that, on each Incremental Facility Closing Dateafter giving effect to all such assignments and purchases, this Agreement shall such Revolving Loans and participation interests in Letters of Credit will be amended held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoincreased Revolver Commitments.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Nautilus, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Representative may by written notice to the Administrative Agent (each, an “Incremental Facility Request”) elect to request the establishment of one or more Lenders new term loan commitments (including New Lenderseach, an “Incremental Term Loan Commitment” and the term loans thereunder, the “Incremental Term Loans”; each Incremental Term Loan Commitment is sometimes referred to herein individually as an “Incremental Facility” and collectively as the “Incremental Facilities”) may from time to time agree that such Lenders shall make, obtain or increase (i) by an aggregate principal amount not in excess of the Incremental Cap and (ii) in the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitmentsnot less than $5,000,000 individually, “Incremental Revolving Commitments” and any facility under which integral multiples of $1,000,000 in excess of that amount. The Borrower Representative may elect to classify by prior written notice to the Administrative Agent, at the time of the incurrence thereof, whether such Incremental Term Loans have been incurred (in whole or in part) first under clause (A) of the definition of “Incremental Revolving Commitments Cap” or clause (B) of the definition of “Incremental Cap” in their sole discretion. If both the Fixed Incremental Amount and amounts pursuant to clause (B) of the definition of “Incremental Cap” are made availableavailable and the Borrower Representative does not make such an election, the Borrower Representative will have been deemed to first have utilized amounts available pursuant to clause (B) of the definition of “Incremental Cap”.
(b) Each Incremental Facility Request shall specify the date (each, an “Incremental FacilityFacility Date”), as applicable, by executing and delivering to ) on which the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed Borrower Representative proposes that the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whicheffective, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto which shall be a Person that date not less than five (5) Business Days after the date on which such notice is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory delivered to the Administrative Agent; provided that each any Lender approached to provide all or a portion of the Incremental Term Facility may elect or decline, in its sole discretion, to provide all or any portion of such Incremental Facility.
(c) Each Incremental Facility shall share ratably in any mandatory prepayments become effective as of the applicable Term Incremental Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement Date; provided that after giving effect to such Additional Credit Extension Amendment;
(I) without Incremental Facility and the consent loans to be made thereunder and the application of the Administrative Agentproceeds therefrom, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment no Event of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), Default shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower continuing on such Incremental Facility Closing Date and (ii) Date; provided that if the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, proceeds of the relevant Incremental Facility will be applied to finance Permitted Acquisitions or other Lenders in acquisitions constituting Investments not prohibited under the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest PeriodLoan Documents, such other rate as condition will be that no event of default shall have occurred and be agreed upon between continuing at the Parent Borrower and time the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement definitive documentation evidencing such acquisition or investment was executed or shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.result therefrom,
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or At any Additional Borrower time during the period from and after the Closing Date through but excluding the date that is the 4 year anniversary of the Closing Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 2 occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $10,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (including New Lendersor other prospective lenders) may from time reasonably satisfactory to time agree that Agent and Borrowers to provide the applicable Increase and any such Lenders shall make(or prospective lenders), obtain or increase the amount of their Incremental Term Loans or Revolving Commitments Borrowers, and Agent have signed a joinder agreement to this Agreement (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental FacilityIncrease Joinder”), as applicablein form and substance reasonably satisfactory to Agent, by executing to which such Lenders (or prospective lenders), Borrowers, and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, are party,
(ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as each of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants conditions precedent set forth in Section 7.1, recomputed as 3.2 are satisfied on the date of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;such Increase Joinder,
(Diii) in no event shall it be a condition to the effectiveness ofconnection with any Increase, or Borrowing under, any Incremental Facility that any representation or warranty of if any Loan Party be true or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U‑1 (with sufficient additional originals thereof for each Lender), duly executed and correct in all material respects, except and solely to the extent required delivered by the lenders providing Borrowers, together with such Incremental Facility;other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board,
(Eiv) the weighted average life interest rate margins with respect to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall to be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be made pursuant to the terms hereof otherwise increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agentapplicable Increase Date, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(Jv) no Lender shall have if any obligation to participate Loan Party or any of its Subsidiaries owns any Margin Stock or is acquiring any Margin Stock in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender connection with the transactions that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not are contemplated to be unreasonably withheldconsummated in connection with such Increase, delayed or conditionedBorrowers shall deliver to Agent a description of any such Margin Stock being acquired, together with a Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall be reasonably satisfactory to the Administrative Agent andrequest, in the case of any Incremental Revolving Loans, the Issuing Lenders order to enable Agent and the Swingline Lender and (ii) shall become a Lender Lenders to comply with any of the requirements under this Agreement pursuant to an Additional Credit Extension AmendmentRegulations T, U or X of the Federal Reserve Board.
(c) Unless otherwise agreed by the Administrative Agentspecifically provided herein, on each Incremental Facility Closing Date with respect all references in this Agreement and any other Loan Document to the Revolving Facility, each Borrower shall borrow Revolving Loans under shall be deemed, unless the relevant increased context otherwise requires, to include Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed made pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable increased Revolver Commitments and Maximum Revolver Amount pursuant to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.14.
(d) Notwithstanding anything Each of the Lenders having a Revolver Commitment prior to the contrary Increase Date (the “Pre‑Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post‑Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in this Agreement, each the Revolving Loans and participation interests in Letters of the parties hereto hereby agrees Credit on such Increase Date as shall be necessary in order that, on each Incremental Facility Closing Dateafter giving effect to all such assignments and purchases, this Agreement shall such Revolving Loans and participation interests in Letters of Credit will be amended held by Pre‑Increase Revolver Lenders and Post‑Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoincreased Revolver Commitments.
(e) The Closing Date Incremental Revolving Commitments Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be provided on entitled to all the Closing Date as Incremental Revolving Commitmentsbenefits afforded by, subject this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving establishment of any such new Revolver Commitments and without any further amendment to this AgreementMaximum Revolver Amount.
Appears in 1 contract
Sources: Credit Agreement (McClatchy Co)
Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower time but in any event not more than once in any calendar year prior to the Revolving Credit Commitment Termination Date by notice to the Agent, request that the aggregate amount of the Revolving Credit Commitments be increased (each such facility increase being an "Incremental Revolving Credit Facility") or request an increase in the Term Facility (each such facility increase being an "Incremental Term Facility") in each case by an amount of $25,000,000 or an integral multiple thereof to be effective as of a date that is at least 60 days prior to the scheduled Revolving Credit Commitment Termination Date then in effect in the case of an Incremental Revolving Credit Facility or the Stated Maturity Date then in effect in the case of an Incremental Term Facility (such date for each such Incremental Facility, the "Increase Date") as specified in the related notice to the Agent; provided, however that (i) in no event shall the aggregate amount of any Incremental Facility at any time exceed $500,000,000 and (ii) on the related Increase Date, the applicable conditions set forth in Article III shall be satisfied. Notwithstanding any other provision of this Agreement (including, without limitation, Section 8.01), this Agreement may be amended by the Agent and the Borrower, if necessary, to provide for terms applicable to each Incremental Facility consistent with the terms hereof.
(b) The Agent shall promptly notify Lenders and, to the extent selected by the Agent in consultation with the Borrower, one or more Lenders Eligible Assignees (including New Lenderseach an "Invited Lender") may from time to time agree that such Lenders shall make, obtain or increase of a request by the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Borrower for Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying which notice shall include (i) the proposed amount of such increase and the Facility or Facilities involvedrequested Incremental Facility, (ii) the applicable Incremental Facility Closing Date, proposed Increase Date and (iii) the applicable Borrower(s) and (iv) date by which Invited Lenders wishing to participate in the case Incremental Facility must commit to an increase in the amount of their respective Commitments or to fund such Incremental Term LoansFacility (the "Commitment Date"). Each Invited Lender that is willing to participate in such requested Incremental Facility (each an "Increasing Lender") shall, (w) in its sole discretion, give written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing to increase its applicable Commitment or participate in such Incremental Term Maturity Facility. If the Increasing Lenders notify the Agent that they are willing to participate in an Incremental Facility by an aggregate amount that exceeds the amount of the requested Incremental Facility, the requested Incremental Facility shall be allocated among the Increasing Lenders willing to participate therein in such amounts as are agreed between the Borrower and the Agent. Promptly following each Commitment Date, the Agent shall notify the Borrower as to the amount, if any, by which the Increasing Lenders are willing to participate in an Incremental Facility.
(xc) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Incremental Facility in accordance with Section 2.18(b) (each such Eligible Assignee, an "Assuming Lender") shall become a Lender party to this Agreement as of such Increase Date and the amortization schedule Commitments of each Increasing Lender for such Incremental Term Loans and Facility shall be so increased by such amount (yor by the amount allocated to such Lender pursuant to the last sentence of Section 2.18(b)) the Applicable Margin for as of such Incremental Term LoansIncrease Date; provided, thathowever, that the Agent shall have received on or before such Increase Date the following, each dated such date:
(i) (A) the aggregate principal amount (or committed amount, if applicable) certified copies of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as resolutions of the date Board of entry Directors of the Borrower or the Executive Committee of such Board approving the entering into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior (and the amount to and be borrowed hereunder after giving effect to any Additional Credit Extension Amendment Incremental Facility) and (including B) an opinion of counsel for the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoBorrower (which may be in-house counsel), no Default or Event in substantially the form of Default has occurred and is continuing or shall result therefromExhibit D-2 hereto;
(Cii) the Parent Borrower shall be in compliancean assumption agreement from each Assuming Lender, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingif any, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof form and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of Agent (each an "Assumption Agreement"), duly executed by such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments Assuming Lender, the Agent and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing DateBorrower; and
(Jiii) no confirmation from each Increasing Lender shall have any obligation to participate of the amount of its participation in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an such Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be in a writing reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, Agent. On each of the parties hereto hereby agrees that, on each Incremental Facility Closing Increase Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms upon fulfillment of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in the immediately preceding sentence of this Section 5 2.18(c), the Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier, of the occurrence of the Incremental Facility to be effected on such Increase Date and shall record in the same extent applicable Register the relevant information with respect to the initial Revolving Commitments each Increasing Lender and without any further amendment to this Agreementeach Assuming Lender on such date.
Appears in 1 contract
Sources: Credit Agreement (Tribune Co)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower may, by written notice to the Administrative Agent and any one or more Lenders each Lender (including New Lenders) may from time with a copy to time agree that such Lenders shall makethe Collateral Agent), obtain or request, prior to the last day of the Revolving Period, an increase to the amount of their Incremental Term Loans or Revolving existing Commitments (any such increased Revolving increase, the “New Commitments, “Incremental Revolving Commitments” ”) by an amount not to exceed $400,000,000 (and the sum of the existing Commitments and any facility under which New Commitments shall not exceed $1,000,000,000 in the aggregate). Each such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying notice shall specify (i) the amount of such increase and the Facility or Facilities involvedNew Commitment, (ii) the applicable Incremental Facility Closing date (each, an “Increased Amount Date, (iii”) on which the applicable Borrower(s) and (iv) in Borrower proposes that the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving New Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans effective and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected approved in writing by the Administrative Agent and (iii) the Parent identity of each Lender or other Person (each, an “Increasing Lender”) to whom the Borrower proposes any portion of such New Commitments be allocated and furnished the amounts of such allocations (if then known); provided that any New Commitment shall first be offered to each existing Lender (pro rata) for a period of seven (7) Business Days prior to offering to any Person that is not an existing Lender. Such New Commitments shall become effective as of such Increased Amount Date if the Administrative Agent, the Required Lenders and each Lender whose Commitment is being increased thereby has consented thereto in their respective sole discretion and subject to any internal approvals; provided that (A) no Unmatured Event of Default, Event of Default or Borrowing Base Deficiency shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (B) the New Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender (if applicable), or one or more Joinder Supplements for any new Lender executed and delivered by the Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the Register; (C) the Borrower shall pay any applicable required fees in connection with the New Commitments; (D) the Borrower shall deliver or cause to be delivered any legal opinions or other parties heretocustomary 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; and (E) the effectiveness of any allocation of New Commitments to a non-Lender shall be subject to (i) the prior written consent of the Administrative Agent and (ii) the Collateral Agent’’s receipt of all documentation necessary for purposes of compliance with the applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Money Laundering Laws.
(eb) The Closing On any Increased Amount Date Incremental Revolving on which New Commitments shall be provided on the Closing Date as Incremental Revolving Commitmentsare effected, subject to the conditions set forth satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the Increasing Lenders, and each of the Increasing Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Advances Outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances will be held by existing Lenders and Increasing Lenders ratably in accordance with their Commitments after giving effect to the addition of such New Commitments to the Commitments, (ii) each New Commitment shall be deemed, for all purposes, a Commitment and each Advance made thereunder (a “New Advance”) shall be deemed, for all purposes, an As compensation for its activities hereunder and reimbursement for its expenses, the Servicer shall be entitled to be paid the Servicing Fee and reimbursed its reasonable out-of-pocket expenses as provided in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.04.
Appears in 1 contract
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableoccasions, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, request (i) the amount establishment of such increase and the Facility or Facilities involved, Incremental Revolving Commitments and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, Commitments; provided that (wA) the applicable aggregate amount of all the Incremental Term Maturity Date, Commitments established hereunder shall not exceed US$600,000,000 and (B) no Incremental Commitments may be established until after the earlier of (x) the amortization schedule for such Incremental Delayed Draw Term Loans Funding Date and (y) the Applicable Margin for Delayed Draw Term Commitment Termination Date. Each such notice shall specify (1) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loans; providedCommitments, that:
as applicable, shall be effective, which shall be a date not less than 10 Business Days (Aor 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 and (2) the aggregate principal amount (of the Incremental Revolving Commitments or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtas applicable, shall not exceed the Incremental Cap;
being requested (B) it being agreed that (x) with respect any Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assumingCommitment or Incremental Term Commitment may elect or decline, in the case of any Additional Credit Extension Amendment with respect its sole discretion, to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and provide such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 Commitment or Incremental Term Commitment and (y) no more than five Incremental Facility Closing Dates may be selected by any Person that the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation Company proposes to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under become an Incremental Facility (i) to the extent Lender, if such consent would Person is not then a Lender, must be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall Eligible Assignee and must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing Lenders Banks or the Swingline Lender, as the case may be, would be required for an assignment to such Person pursuant to Section 10.04).
(b) The terms and conditions of any Incremental Revolving Commitment and the Swingline Lender Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and conditions of any Incremental Term Loans shall be such as the Company and the applicable Incremental Term Lenders shall agree upon; provided that (i) the Incremental Term Loans shall be extensions of credit to the Company that are guaranteed only by the Subsidiary Guarantors, (ii) the Incremental Term Loans shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.rank pari passu in right of payment with the other Loans and the other Loan Document Obligations and shall not be secured [[3851767]]
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Administrative AgentCompany, on each Incremental Facility Closing Date Lender providing such Incremental Commitments and the Administrative Agent (with respect the Administrative Agent hereby agreeing that its consent thereto shall not be unreasonably withheld, conditioned or delayed); provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the Revolving Facilitymaking of any Loans thereunder to be made on such date, each Borrower shall borrow Revolving Loans under (ii) on the relevant increased Revolving Commitments from each Lender participating date of effectiveness thereof, the representations and warranties of the Loan Parties set forth in the relevant increase Loan Documents shall be true and correct in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, A) in the case of Eurocurrency Loans 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 of effectiveness, except in the case of any such representation or Term Benchmark Loanswarranty that expressly relates to a prior date, in which case such representation or warranty shall be so true and correct on and as of each Eurocurrency Tranche or Term Benchmark Tranchesuch prior date, and (iii) the Company shall have delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as applicable) which would then shall have been outstanding from reasonably be requested by the Administrative Agent in connection with any such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such transaction. Each Incremental Facility Closing Date Agreement may, without the consent of any Lender, effect such amendments to this Agreement and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders Loan Documents as may be necessary or appropriate, in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration opinion of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished Company, to give effect to the other parties hereto.
(e) The Closing Date provisions of this Section, including any amendments necessary or appropriate to treat the Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Term Commitments and without any further amendment to this Agreement.the Incremental [[3851767]]
Appears in 1 contract
Sources: Credit Agreement (Westinghouse Air Brake Technologies Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or after the Closing Date elect to increase the amount of their Incremental Term Loans Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableexisting tranche of) term loans denominated in Dollars (each, an “Incremental FacilityTerm Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments and (y) $20,000,000 (or such lesser amount as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedmay agree), (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoans so long as, (w) after giving effect thereto, the applicable Incremental Term Maturity Date, (x) the amortization schedule for aggregate amount of all such Increased Commitments and all such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental other than Refinancing Term Loans and Incremental Refinancing Revolving Commitments, together with ) does not exceed $300,000,000 less the aggregate principal amount of any Permitted Incremental Equivalent DebtIndebtedness previously incurred by the Borrower and its Restricted Subsidiaries. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment or Extended Revolving Commitment, shall not exceed the Incremental Cap;
(B) (x) with respect or to any participate in such Incremental Term Loans being incurred to finance a Permitted Acquisition Loan, an “Increasing Lender”), or a similar permitted Investment designated by the Parent Borrower as one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “Limited Conditionality AcquisitionNew Lender”), no Default to increase their existing Revolving Commitment or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisitionExtended Revolving Commitment, merger or similar agreement governing to participate in such acquisition Incremental Term Loan, or (y) otherwiseextend Revolving Commitments or Extended Revolving Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment case may be; provided that each New Lender (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingand, in the case of any Additional Credit Extension Amendment with respect an Increased Commitment, each Increasing Lender) shall be subject to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as approval of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness ofand, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required under Section 9.04 for an assignment of to such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldNew Lender, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the consent of any Incremental Revolving LoansLenders other than the relevant Increasing Lenders or New Lenders, the Issuing Lenders this Agreement and the Swingline Lender and (ii) shall become a Lender under this Agreement other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the date agreed by the Borrower, the Administrative AgentAgent and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, on each Incremental Facility Closing Date with respect to no increase in the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Commitments or Extended Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency or Incremental Term Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if shall be permitted under this paragraph unless (i) each on the proposed date of the effectiveness of such Type, Eurocurrency Tranche increase in the Revolving Commitments or Term Benchmark Tranche had been borrowed Extended Revolving Commitments or effected by such Borrower on borrowing of such Incremental Facility Closing Date Term Loan, the conditions set forth in paragraphs (a) and (iib) of Section 4.02 shall be satisfied or waived by the aggregate amount Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of each such Typethe Borrower; provided, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant that to the preceding sentence shall equal extent agreed to by the Eurocurrency Rate then applicable to the Eurocurrency Loans Lenders providing such Increased Commitments or Adjusted Incremental Term SOFR Rate for Term Benchmark Loans, as applicable, and the proceeds of such Increased Commitments or Incremental Term Loans, as the case may be, are used to finance a Permitted Acquisition or similar Investment, with respect to the condition set forth in Section 4.02(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.02(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenants contained in Section 6.09 as of the last day of the most recent fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders in the same Eurocurrency Tranche or Term Benchmark TrancheLenders, as applicable (orbeing required in order to cause, until after giving effect to such increase and the expiration use of such amounts to make payments to such other Lenders, each Lender’s portion of the then-current Interest Periodoutstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such other rate as Revolving Loans shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything on or prior to the contrary in this Agreement, each effectiveness of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall such Increased Commitments be amended prepaid to the extent (but only to necessary from the extent) necessary to reflect the existence and terms proceeds of the Incremental Term additional Revolving Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Parent Borrower Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and furnished pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other parties heretothan on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans, (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Term Loans in any mandatory prepayment hereunder (except in the case of incurrence of Refinancing Indebtedness in respect thereof), (iv) the provisions with respect to payment of interest, original issue discount and upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (iv) above) to the extent not identical to the terms of the then outstanding Term Loans, shall be reasonably satisfactory to the Administrative Agent. The terms of any Increased Commitments shall be the same as those of the Revolving Commitments or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may have a later maturity date than, and pricing and fees different from, those applicable to the Revolving Commitments and Extended Revolving Commitments. For the avoidance of doubt, no Lender shall have any obligation to provide any Increased Commitment or Incremental Term Loan.
(eb) The Closing Date Incremental Revolving Commitments This Section 2.19 shall be provided on the Closing Date as Incremental Revolving Commitments, subject override any provisions in Section 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Sources: Credit Agreement (Cable One, Inc.)
Incremental Facilities. Pursuant to Section 2.20 of the Credit Agreement, on and as of the Increase Effective Date:
(a) The Parent Borrower and/or any Additional Borrower Each 2018 Incremental Lender that is not, prior to the effectiveness of this Agreement, a Term Loan Lender under the Credit Agreement, hereby agrees that upon, and any one or more Lenders (including New Lenders) may from time subject to, the occurrence of the Increase Effective Date, such 2018 Incremental Lender shall be deemed to time agree be, and shall become, a “Term Loan Lender” for all purposes of, and subject to all the obligations of a “Term Loan Lender” under, the Amended Credit Agreement and the other Loan Documents. Each 2018 Incremental Lender shall have an Incremental Term Loan Commitment that such Lenders shall make, obtain or increase is equal to the amount of their set forth opposite such 2018 Incremental Lender’s name under the heading “2018 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Loan Commitments” and any facility under which on Schedule 2.01(a) to this Agreement (such commitment hereinafter referred to as the “2018 Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental FacilityLoan Commitments”), as applicable, by executing . Each Credit Party and delivering to the Administrative Agent an Additional hereby agree that from and after the Increase Effective Date, each 2018 Incremental Lender shall be deemed to be, and shall become, a “Term Loan Lender” for all purposes of, and with all of the rights and remedies of a “Term Loan Lender” under, the Amended Credit Extension Amendment specifying (i) the amount of such increase Agreement and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any other Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionDocuments.
(b) Any New Each 2018 Incremental Lender that elects hereby agrees to provide Commitments under an make 2018 Incremental Facility (iTerm Loans to the Borrower on the Increase Effective Date in a principal amount not to exceed its respective 2018 Incremental Term Loan Commitment set forth on Schedule 2.01(a) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed Section 1.01 of the Credit Agreement is hereby amended by inserting the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating following new definitions in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.appropriate alphabetical order therein:
Appears in 1 contract
Sources: Incremental Facility Assumption Agreement (Dragoneer Growth Opportunities Corp. II)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions after the Second Refinancing Facility Agreement Effective Date, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments, provided that such Lenders shall make, obtain or increase the aggregate amount of their all the Incremental Term Loans or Revolving Commitments established hereunder shall not exceed (any A) $50,000,000 plus (B) such increased greater amount that will not result in the First Lien Secured Leverage Ratio, determined on a Pro Forma Basis giving effect to such Incremental Facility (assuming that all Revolving Commitments, “including any Incremental Revolving Commitments” , have been fully funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the First Lien Secured Leverage Ratio the cash proceeds of the Borrowings under any facility under which such Incremental Revolving Facility or Incremental Term Loans or Facility, but not excluding the use of such proceeds) exceeding 3.75 to 1.00. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments are made available, an “or the Incremental Facility”)Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for such Borrower proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not then a Loan Party;
(G) except with respect to pricing Lender, must be an Eligible Assignee and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, the each Issuing Lenders Bank and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may by written notice to the Administrative Agent from time to time agree on or after the Amendment No. 1 Effective Date elect to seek from Current Lenders or, subject to Section 2.19(e), Persons that such are not then Current Lenders shall makethat would become Lenders hereunder pursuant to this Section 2.19, obtain or (a) commitments to increase the amount of their Incremental Term Loans or Revolving Credit Commitments (any such increased increase a “Revolving Commitments, Commitment Increase”) or (b) commitments to increase the aggregate principal amount of Term Loan Advances but with any and all differences from the Term Loan Advances made on the Closing Date as permitted by the parenthetical phrase in Section 2.19(c)(i) (“Incremental Revolving Additional Term Advance Commitments” and any facility under which such Incremental Term Loans or Incremental together with Revolving Commitments are made availableCommitment Increases, an “Incremental Facility”)) by an aggregate amount for all Incremental Facilities not in excess of $100,000,000. Each such notice shall specify the date (each, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase “Incremental Effective Date” and the Facility Incremental Effective Date applicable to any particular Revolving Commitment Increase or Facilities involved, (iiAdditional Term Advance Commitments being referred to as the “Relevant Incremental Effective Date” applicable to such Revolving Commitment Increase or Additional Term Advance Commitments) on which the Borrower proposes that the applicable Incremental Facility Closing Dateshall be effective, which shall be a date not less than five (iii5) Business Days (or such lesser number of days as shall be acceptable to the applicable Borrower(sAdministrative Agent) and (iv) in after the case date on which such notice is delivered to the Administrative Agent. No Person that is a Lender prior to the effectiveness of Incremental Term Loans, (w) the any applicable Incremental Term Maturity Date, Facility Amendment (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (xa “Current Lender”) with respect to any Incremental Term Loans being incurred Facility (or any of such Current Lender’s Affiliates or Approved Funds) shall be obligated to finance a Permitted Acquisition provide any such Incremental Facility, and any commitment of any Current Lender, Affiliate or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Approved Fund to provide an Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect sole discretion of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentCurrent Lender, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionAffiliate or Approved Fund.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on 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 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableoccasions, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, request (i) the amount establishment, during the Revolving Availability Period, of such increase and the Facility or Facilities involved, Incremental Revolving Commitments and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term LoansCommitments; provided, that:
provided that (A) Incremental Commitments may be established hereunder only if the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans Total Leverage Ratio and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingSenior Secured Leverage Ratio, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))each case, with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower Company for which financial statements are available;
shall have been delivered pursuant to Section 5.01(a) or (Db), determined on a pro forma basis assuming that Borrowings under and in the full amount of such Incremental Commitments were outstanding on the last day of such fiscal quarter, would not have been greater than 3.75 to 1.00 and 3.25 to 1.00, respectively, and (B) in no event the aggregate amount of all the Incremental Commitments established hereunder during the term of this Agreement shall it not exceed $200,000,000. Each such notice shall specify (x) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a condition date not less than 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 effectiveness ofAdministrative Agent and (y) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, or Borrowing underas applicable, being requested (it being agreed that (1) any Lender approached to provide any Incremental Facility Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (2) any Person that any representation or warranty of any Loan Party the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be true an Eligible Assignee and correct in all material respects, except and solely to the extent required must be approved by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except Administrative Agent and, in the case of customary high-yield bridge loans whichany proposed Incremental Revolving Lender, subject to customary conditions each Issuing Bank and the Swingline Lender (including no payment or bankruptcy event of default), would either automatically be converted into or required such approval not to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facilityunreasonably withheld);).
(Fb) all The terms and conditions of any Incremental Term Revolving Commitment and the Loans and any other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that, if the Company determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall rank pari passu in right of payment and right of security be permitted if the interest rate or fees payable in respect of the Collateral with the Term other Revolving Commitments or Loans and the other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Loans and none other extensions of credit made thereunder, as the obligors case may be; provided further that the Company at its election may pay upfront, closing or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except similar fees with respect to pricing Incremental Revolving Commitments without paying such fees with respect to the other Revolving Commitments. The terms and fees or as otherwise set forth in this Section 2.25(a), all terms conditions of any Incremental Term Facility, if not consistent with Commitments and the applicable existing Incremental Term Facility, Loans to be made thereunder shall be determined between by the Parent Borrower Company and the lenders for Incremental Term Lenders providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility Loans shall share ratably in not be required to be paid as to principal prior to the Revolving Maturity Date or the Incremental Term Maturity Date applicable to any other Series of Incremental Term Loans (except that the terms and conditions of any Incremental Term Commitments and Incremental Term Loans may provide for customary amortization and customary mandatory prepayments prepayment requirements with proceeds of asset dispositions or incurrences of Indebtedness prior to the applicable Term Facility unless the Parent Borrower and the lenders in respect of Revolving Maturity Date or any such Incremental Term Maturity Date). Any Incremental Term Commitments established pursuant to an Incremental Facility elect lesser payments;Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. All Incremental Term Loans of any Series shall be due and payable on the Incremental Term Maturity Date applicable thereto.
(Hc) any The Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Revolving Loans Administrative Agent; provided that, except as set forth in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such penultimate sentence of this paragraph (c), no Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments (Iand assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), no Default shall have occurred and be continuing, (ii) after giving effect to such Incremental Commitments and any related transaction, on a pro forma basis in accordance with Section 1.04(b), the Company shall be in compliance with the covenants set forth in Sections 6.11, 6.12 and 6.13 (in each case, calculated as of the last day of the then most recently ended fiscal quarter of the Company for which the financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) and the period of four fiscal quarters then ended and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), and the Company shall have delivered an officer’s certificate setting forth reasonably detailed calculations demonstrating such pro forma compliance, (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, (iv) after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects, in each case on and as of the date of effectiveness thereof and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Notwithstanding the foregoing, if any Incremental Commitments shall be established to finance a Permitted Acquisition or any Investment permitted hereunder, then, to the extent agreed by the Lenders providing such Incremental Commitments, customary “Sungard” or certain funds conditionality may be implemented with respect to the funding of such Incremental Commitments (but not the Commitments of other Lenders) in lieu of the conditions set forth in this paragraph (c). 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, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Issuing Lenders Revolving Exposures and the Swingline Lender Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) In connection with the effectiveness of any Incremental Revolving Commitments, (i) the Borrowers and the Lenders shall implement such measures as shall be reasonably specified by the Administrative Agent (which may include assignments, deemed prepayments of Loans or other measures deemed appropriate by the Administrative Agent taking into account, among other factors, the desirability of minimizing “breakage” costs) in order that the Revolving Exposures of the Lenders will be held ratably in accordance with their Revolving Commitments, and (ii) any “breakage” costs resulting from the implementation of such measures shall become a Lender under this Agreement be subject to compensation by the Company pursuant to the provisions of Section 2.16 if the date of the effectiveness of such measures occurs other than on the last day of an Additional Credit Extension Amendmentapplicable Interest Period.
(cf) Unless otherwise agreed Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower Company may by written notice to Administrative Agent elect to request (A) prior to the Tranche A Revolving Commitment Termination Date, an increase to the existing Tranche A Revolving Commitments (such increase, the “Additional Revolving Commitments”) and/or any Additional Borrower and any (B) prior to the Term Loan Maturity Date the establishment of one or more Lenders new term loan commitments (including New Lendersthe “Additional Term Loan Commitments”), in an amount, with respect to clauses (A) may from time to time agree and (B) collectively, not in excess of Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between Maximum Incremental Facilities Amount and all such Lenders shall make, obtain or increase the amount of their Incremental Additional Term Loans or Loan Commitments and Additional Revolving Commitments obtained prior to such date), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableA) the date (each, an “Incremental FacilityIncreased Amount Date”)) on which Company proposes that the Additional Term Loan Commitments or Additional Revolving Commitments, as applicable, by executing and delivering 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 an Additional Credit Extension Amendment specifying and (iB) the amount identity of each Lender or other Person that is an Eligible Assignee (each, an “Additional Term Loan Lender” or “Additional Revolving Lender”, as applicable) to whom Company proposes any portion of such increase and the Facility Additional Term Loan Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Additional Revolving Commitments, together with as applicable, be allocated and the aggregate principal amount amounts of such allocations; provided that any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition provide all or a similar permitted Investment designated by portion of the Parent Borrower Additional Term Loan Commitments or Additional Revolving Commitments, as a “Limited Conditionality Acquisition”applicable, may elect or decline, in its sole discretion, to provide such commitment. Such Additional Term Loan Commitments or Additional Revolving Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Additional Term Loan Commitments or (y) otherwiseAdditional Revolving Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (2) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Additional Revolving Loan or Series of Additional Term Loans Loans, each of the conditions set forth in Section 3.2 shall be satisfied; (3) with respect to any request for Additional Term Loan Commitments or Incremental Additional Revolving Commitments pursuant thereto)Commitments, no Default or Event of Default has occurred as applicable, Company and is continuing or shall result therefrom;
(C) the Parent Borrower its Restricted Subsidiaries shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made compliance with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed 6.7 as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
Fiscal Quarter (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to all Additional Term Loan Commitments and Additional Revolving Commitments requested at such time); (4) the Additional Term Loan Commitments or Additional Revolving Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the relevant Additional Term Loan Lender and/or Additional Revolving Lender, each Credit Extension Amendment;
(I) without the consent of the Party and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Sections 2.20(e) and (xg); (5) each increase effected Company shall make any payments required pursuant to this paragraph Section 2.18(c) in connection with the Additional Term Loan Commitments or Additional Revolving Commitments, as applicable; and (6) 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 Additional Term Loans made on an Increased Amount Date shall be in designated a minimum amount separate series (a “Series”) of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in Additional Term Loans, for all purposes of this paragraph unless it agrees to do so in its sole discretionAgreement.
(b) Any New Lender that elects On any Increased Amount Date on which any Additional Term Loan Commitments of any Series are effective, subject to provide Commitments under an Incremental Facility the satisfaction of the foregoing terms and conditions, (i) each Additional Term Loan Lender of any Series shall make a Loan to the extent such consent would be required for Company (an assignment “Additional Term Loan”) in an amount equal to its Additional Term Loan Commitment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldSeries, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) each Additional Term Loan Lender of any Series shall become a Lender under this Agreement hereunder with respect to the Additional Term Loan Commitment of such Series and the Additional Term Loans of such Series made pursuant to an Additional Credit Extension Amendmentthereto.
(c) Unless otherwise agreed On any Increased Amount Date on which Additional Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the Tranche A Revolving Lenders shall assign to each of the Additional Revolving Lenders, and each of the Additional Revolving Lenders shall purchase from each of the Tranche A Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Tranche A Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Tranche A Revolving Loans will be held by the Administrative Agentexisting Tranche A Revolving Lenders and Additional Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Additional Revolving Commitments to the Tranche A Revolving Commitments, on (ii) each Incremental Facility Closing Date Additional Revolving Commitment shall be deemed for all purposes a Tranche A Revolving Commitment and each Loan made thereunder (an “Additional Revolving Loan”) shall be deemed, for all purposes, a Tranche A Revolving Loan and (iii) each Additional Revolving Lender shall become a Lender with respect to the Additional Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date Commitment and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)all matters relating thereto.
(d) Notwithstanding anything Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of each Increased Amount Date and in respect thereof (i) the Additional Revolving Commitments and Additional Revolving Lenders, the Series of Additional Term Loan Commitments and the Additional Term Loan Lenders of such Series, as applicable, and (ii) in the case of each notice to any Tranche A Revolving Lender, the respective interests in such Revolving Lender’s Tranche A Revolving Loans, in each case subject to the contrary in assignments contemplated by this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoSection 2.24.
(e) The Closing Date Incremental Revolving terms and provisions of the Additional Term Loans and Additional Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, substantially consistent with the Term Loans and Term Loan Commitments. In any event (i) the Weighted Average Life to Maturity of all Additional Term Loans of any Series shall be provided no shorter than the Weighted Average Life to Maturity of Term Loans, (ii) the applicable Additional Term Loan Maturity Date of each Series shall be no shorter than the Latest Maturity Date of the Term Loans (as determined on the Closing Date as Incremental Revolving Commitments, subject date of incurrence of such Additional Term Loans) and (iii) the rate of interest applicable to the conditions Additional Term Loans of each Series shall be determined by Company and the applicable new Lenders and shall be set forth in Section 5 each applicable Joinder Agreement; provided that the interest rate margin (which shall be deemed to include all upfront fees or original issue discount (“OID”) (other than customary underwriting or arranger fees, and with respect to OID and upfront fees, determined based on an assumed four year life to maturity) or interest rate “floors” payable to all Additional Term Loan Lenders) in respect of any Additional Term Loan shall be the same extent as that applicable to the initial Term Loans, except that the interest rate margin (determined as above) in respect of any Additional Term Loan may exceed the interest rate margin (determined as above) for the Term Loans, respectively, by no more than 50 basis points, or if it does so exceed, such interest rate margin (determined as above) of the Term Loans shall be increased so that the interest rate margin (determined as above) in respect of such Additional Term Loans, is no more than 50 basis points higher than the interest rate margin (determined as above) of the Term Loans. The terms and provisions of the Additional Revolving Commitments and Additional Revolving Loans shall be the same (except for fees) with the Tranche A Revolving Commitments and Tranche A Revolving Loans, except as otherwise set forth herein or in the Joinder Agreement (it being acknowledged that Additional Revolving Commitments may be documented as an increase of the Tranche A Revolving Commitments or as a separate class of revolving commitments). Each Joinder Agreement may, without consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other Credit Documents as may be necessary or appropriate, in the opinion of Administrative Agent, to effect the provision of this Section 2.24.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Covanta Holding Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Commitments, an “provided that the aggregate amount of all the Incremental Facility”)Commitments established hereunder shall not exceed $100,000,000 during the term of this Agreement. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for such Borrower proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans such Person is not then a Lender, must be an Eligible Assignee and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall must be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect acceptable to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender (such consent, in each case, not to be unreasonably withheld, conditioned or delayed)).
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Borrower determines to increase the interest rate or fees payable hereunder in respect of Incremental Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable hereunder in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as the case may be; provided further that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments that without paying such commitments are fully drawn) without fees with respect to the netting other Revolving Commitments. The terms and conditions of proceeds thereof any Incremental Term Commitments and any Permitted Acquisition the Incremental Term Loans to be made with the proceeds thereof))thereunder shall be, with the financial covenants except as otherwise set forth herein or in Section 7.1the applicable Incremental Facility Agreement, recomputed as identical to those of the last day of Tranche A Term Commitments and the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
Tranche A Term Loans; provided that (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ei) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Tranche A Terms Loans and (ii) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Tranche A Term Facility);
(F) all Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facilitythereunder, shall be determined between designated as a separate series (each 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 Holdings, the Parent Borrower and the lenders for Borrower, each Incremental Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), no Default shall have occurred and be continuing, (ii) on the date of effectiveness thereof and the making of Loans and issuance of Letters of Credit Extension Amendment;
thereunder to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (IA) 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 assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), and any related transaction, on a pro forma basis in accordance with Section 1.04(b), Holdings and the Borrower shall be in compliance with the covenants set forth in Sections 6.12, 6.13 and 6.14 (calculated as of the last day of, or for, the period of four consecutive fiscal quarters of Holdings then most recently ended for which the financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or prior to the first such delivery, as of, or for. such period ended on June 30, 2011), provided that, for purposes of determining the Senior Secured Leverage Ratio and the Total Leverage Ratio under Sections 6.13 and 6.14, Secured Total Indebtedness and Total Indebtedness shall be determined on a pro forma basis as of the date of the effectiveness thereof and the maximum Senior Secured Leverage Ratio then permitted under Section 6.13 shall be assumed to be 2.25 to 1.00), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (v) Holdings and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary's certificates, officer's certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of 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, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the Aggregate Revolving Commitment shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitments.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or At any Additional Borrower time during the period from and after the Closing Date through but excluding the date that is the fourth year anniversary of the Closing Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Revolver Increase Amount (each such increase, an "Increase"). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than four occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $25,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (including New Lendersor other prospective lenders) may from time reasonably satisfactory to time agree that Agent and Borrowers to provide the applicable Increase and any such Lenders shall make(or prospective lenders), obtain or increase the amount of their Incremental Term Loans or Revolving Commitments Borrowers, and Agent have signed a joinder agreement to this Agreement (any such increased Revolving Commitmentsan "Increase Joinder"), “Incremental Revolving Commitments” in form and any facility under substance reasonably satisfactory to Agent, to which such Incremental Term Loans Lenders (or Incremental Revolving Commitments are made available, an “Incremental Facility”prospective lenders), as applicableBorrowers, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, are party,
(ii) each of the applicable Incremental Facility Closing Date, conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the applicable Borrower(s) Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board,
(iv) in the case of Incremental Term Loans, Borrowers have delivered to Agent updated pro forma Projections (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred applicable Increase) for the Loan Parties and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (including giving pro forma effect to on a month-by-month basis) immediately following the proposed date of the applicable Additional Credit Extension Amendment Increase (including calculated as if a Covenant Testing Period was in effect during the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder entire twelve month period), and
(and assuming, in the case of any Additional Credit Extension Amendment v) The interest rate margins with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none to be made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the date of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments effectiveness of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving increased Revolver Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 Maximum Revolver Amount (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loansdate, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment"Increase Date").
(c) Unless otherwise agreed by the Administrative Agentspecifically provided herein, on each Incremental Facility Closing Date with respect all references in this Agreement and any other Loan Document to the Revolving Facility, each Borrower shall borrow Revolving Loans under shall be deemed, unless the relevant increased context otherwise requires, to include Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed made pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable increased Revolver Commitments and Maximum Revolver Amount pursuant to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.14.
(d) Notwithstanding anything Each of the Lenders having a Revolver Commitment prior to the contrary Increase Date (the "Pre-Increase Revolver Lenders") shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the "Post-Increase Revolver Lenders"), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in this Agreement, each the Revolving Loans and participation interests in Letters of the parties hereto hereby agrees Credit on such Increase Date as shall be necessary in order that, on each Incremental Facility Closing Dateafter giving effect to all such assignments and purchases, this Agreement shall such Revolving Loans and participation interests in Letters of Credit will be amended held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoincreased Revolver Commitments.
(e) The Closing Date Incremental Revolving Commitments Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be provided on entitled to all the Closing Date as Incremental Revolving Commitmentsbenefits afforded by, subject this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving establishment of any such new Revolver Commitments and without any further amendment to this AgreementMaximum Revolver Amount.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders Holdings may by written notice to the Administrative Agent elect to request (including New LendersA) may from time prior to time agree that such Lenders shall makethe Maturity Date of the Revolving Credit Facility, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Credit Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or (B) prior to the Maturity Date of the Term A Facility, the establishment of one or more new term loan A commitments (the “Incremental Term Loans or Loan A Commitments”) by an amount not in excess of an aggregate amount equal to $500,000,000 after the Third Restatement Date (such amount, the “Incremental Capacity”) and not less than $25,000,000 individually. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which Holdings proposes that the Incremental Revolving Commitments are made availableor Incremental Term Loan A 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 (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (each, an “Incremental FacilityRevolving Loan Lender” or “Incremental Term Loan A Lender”), as applicable) to whom Holdings proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan A Commitments, as applicable, by executing be allocated and delivering the amounts of such allocations. Any Lender approached to provide all or a portion of the Administrative Agent Incremental Revolving Commitments or Incremental Term Loan A Commitments may elect or decline, in its sole discretion, to provide an Additional Credit Extension Amendment specifying Incremental Revolving Commitment or an Incremental Term Loan A Commitment. Such Incremental Revolving Commitments or Incremental Term Loan A Commitments shall become effective as of such Increased Amount Date; provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment such Incremental Revolving Commitments or Incremental Term US-DOCS\70212156.13 Loan A Commitments, as applicable, and the extensions of credit to be made thereunder on such date; (including ii) both before and immediately after giving effect to the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)A Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 4.03 shall result therefrom;
be satisfied; (Ciii) the Parent Borrower Holdings shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to compliance with each of the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.17.11, recomputed in each case as of the last day of the most recently ended fiscal quarter and as of the Parent Borrower Increased Amount Date (assuming for which financial statements are available;
(D) in no event such purpose that the relevant ratios shall it be a condition to the effectiveness ofhave been calculated taking into account all Consolidated Funded Indebtedness outstanding on such date, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity Consolidated EBITDA as of the Initial Term Facility most recently completed Measurement Period and the Consolidated Cash Interest Expense for such Measurement Period (except assuming for such purpose that such Consolidated Funded Indebtedness had been outstanding on the first day of and through the end of such Measurement Period and measuring such ratios against those for the most recently ended period in the case of customary high-yield bridge loans which, subject question set forth in Section 7.11 (as applicable))) after giving effect to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of such Incremental Revolving Commitments or Incremental Term Loan A Commitments and the extensions of credit to be made thereunder on such date, as applicable; (iv) the Incremental Revolving Commitments or Incremental Term Loan A Commitments, as applicable, shall be effected pursuant to one or more Incremental Joinder Agreements executed and delivered by Holdings or the applicable Revolving Credit Borrowers, as applicable, the Incremental Revolving Loan Lender(s) or the Incremental Term Loan A Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender and Incremental Term Loan A Lender shall be subject to the requirements set forth in Section 3.01); (v) the Incremental Facilities shall rank pari passu in right of payment security with the Revolving Credit Facility and right of security the Term A Facility, (vi) all reasonable fees and out-of-pocket expenses actually incurred owing to the Administrative Agent and the Lenders (other than a Defaulting Lender) in respect of the Collateral Incremental Revolving Commitments and Incremental Term Loan A Commitments shall have been paid, (vii) the incurrence of Incremental Term A Loans, Incremental Revolving Commitments and/or Incremental Revolving Loans shall be permitted at such time under the SpinCo Notes Documents and any other indenture, loan agreement or other material agreement to which Holdings or any of its Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject and (viii) Holdings shall deliver or cause to be delivered legal opinions, officer’s certificates and such other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term A Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term A Loans for all purposes of this Agreement or, if made on terms identical to (i) in the case of Incremental Term A Loans denominated in Australian Dollars, the Australian Dollar Term A Loans or (ii) in the case of Incremental Term A Loans denominated in Euros, the Euro Term A Loans, may constitute a part of the Australian Dollar Term A Facility or the Euro Term A Facility, as applicable.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans and none of the obligors or guarantors with respect thereto outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Credit Commitments, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Person that is not Revolving Credit Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan Party;
and (Giii) except each Incremental Revolving Loan Lender shall become a Lender with respect to pricing the Incremental Revolving Commitment and fees or as otherwise set forth in this Section 2.25(a), all terms of matters relating thereto. US-DOCS\70212156.13
(c) On any Increased Amount Date on which any Incremental Term FacilityLoan A Commitments of any Series are effective, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory subject to the Administrative Agent; provided that satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan A Lender of any Series shall share ratably make a Loan to Holdings (an “Incremental Term A Loan”) in an amount equal to its Incremental Term Loan A Commitment of such Series and (ii) each Incremental Term Loan A Lender of any mandatory prepayments Series shall become a Lender hereunder with respect to the Incremental Term Loan A Commitment of the applicable Term Facility unless the Parent Borrower such Series and the lenders Incremental Term A Loans of such Series made pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of Holdings’ notice of each Increased Amount Date and in respect of such Incremental Term Facility elect lesser payments;
thereof (Hi) any the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders, the Series of Incremental Term Loan A Commitments and the Incremental Term Loan A Lenders of such Series of such Series, as applicable and (ii) in the case of each notice to any applicable Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, in each case subject to the assignments contemplated by this Section 2.14.
(e) Except as otherwise provided herein, the terms and documentation in respect of any Incremental Term A Loans and Incremental Term Loan A Commitments shall be reasonably satisfactory to Holdings, the Administrative Agent and the Incremental Term Loan A Lenders; provided that the terms and provisions of the Incremental Term A Loans and Incremental Term Loan A Commitments of any Series shall be, except as otherwise set forth herein or as otherwise agreed by Holdings, the Administrative Agent and the Incremental Term Loan A Lenders and set forth in the Incremental Joinder Agreement, (i) in the case of Incremental Term A Loans denominated in Australian Dollars, identical to the Australian Dollar Term A Loans or (ii) in the case of Incremental Term A Loans denominated in Euros, identical to the Euro Term A Loans. Notwithstanding the foregoing, (i) the Weighted Average Life to Maturity of all Incremental Term A Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Australian Dollar Term A Loans or the Euro Term A Loans, (ii) the applicable Incremental Term Loan A Maturity Date of each Series shall be no shorter than the latest final maturity date of the Australian Dollar Term A Loans or the Euro Term A Loans, (iii) the yield applicable to the Incremental Term A Loans of each Series shall be determined by Holdings and the applicable new Lenders and shall be set forth in each applicable Incremental Joinder Agreement; provided, however, that if the All-in Yield applicable to the Incremental Term A Loans exceeds the applicable All-in Yield of the Australian Dollar Term A Loans or the Euro Term A Loans by more than 0.50% per annum, the applicable interest rate of such Term A Loans shall be increased (without further consent of the affected Lenders) so that the All-in Yield applicable to the Incremental Term A Loans is not more than 0.50% per annum more than the All-in Yield applicable to such Term A Loans and (iv) the currency of any Incremental Term A Loans may be U.S. Dollars, Canadian Dollars, Euros, Pounds Sterling, Australian Dollars or any other lawful currency that is readily available and freely transferable and convertible into U.S. Dollars, in each case as determined by Holdings, the Administrative Agent and the Incremental Term Loan A Lenders.
(f) The terms and provisions of the Incremental Revolving Loans in respect thereof shall be pursuant identical to the terms hereof otherwise Revolving Credit Loans; provided that if the applicable Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving Credit Facility, the interest rate on the Revolving Credit Facility and shall be increased to equal such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;required rate without further consent of the affected Lenders.
(Ig) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. US-DOCS\70212156.13 (xh) each increase effected pursuant to this paragraph This Section 2.14 shall be supersede any provisions in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (iSection 2.13 or Section 11.01(a) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendmentcontrary.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (ACCO BRANDS Corp)
Incremental Facilities. (a) The Parent So long as no Default or Event of Default exists or would arise therefrom, the Borrower and/or shall have the right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to a Permitted Escrow Arrangement (but only for so long as such Incremental Loans are subject to such Permitted Escrow Arrangement), a Permitted Escrow Subsidiary (any Additional Borrower such Permitted Escrow Subsidiary, an “Escrow Borrower”), at any time and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall makeafter the Closing Date, obtain (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the commitments thereunder, the “Incremental Term Loan Commitments”, and each, a “New Term Facility”) and (ii) to increase the amount existing Term Loans by requesting new term loan commitments to be added to an existing Tranche of their Term Loans (the “Supplemental Term Loan Commitments”, and together with the Incremental Term Loans or Revolving Commitments (any such increased Revolving Loan Commitments, the “Incremental Revolving Commitments” ”, and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableeach, an “Incremental Facility”), provided that, the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.14 shall not exceed, at the time of Incurrence or establishment of the respective Incremental Commitment, the Maximum Incremental Facilities Amount. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.14 shall be in a minimum aggregate amount of at least $15,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as applicablethe Administrative Agent may agree).
(b) Each request from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”), provided that, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, such Additional Lender shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) that may be required pursuant to Section 10.07 (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 10.07(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by executing such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and delivering each increasing Lender substantially in the form attached hereto as Exhibit K-1 (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit K-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent an for recording in the Register pursuant to which such Lender or Additional Credit Extension Amendment specifying (i) the amount Lender agrees to commit to all or a portion of such increase Incremental Facility, and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of an Additional Lender, to be bound by the terms of this Agreement as a Lender. Borrower may agree to accept a lesser amount of any Incremental Facility than originally requested. In the event there are Lenders and Additional Lenders that have committed to an Incremental Facility in excess of the maximum amount requested (or permitted), then Borrower shall have the right to allocate such commitments on whatever basis Borrower determines is appropriate. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term LoansLoan Commitment shall be a Term Loan. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, (wi) effect such amendments to any Loan Documents (including amendments to Section 2.07 to increase the amortization payments thereunder (if any) to allow for the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.14(c) and (yii) if the Applicable Margin for Borrower determines to increase the interest rate or fees in respect of any Supplemental Term Loan Commitments, increase the interest rate or fees in respect of the existing Tranche of Term Loans to which such Incremental Supplemental Term Loans; providedLoan Commitments pertain such that it equals to the interest rate or fees in respect of such Supplemental Term Loan Commitments (provided that, that:
(A) subject to the aggregate principal amount (or committed amountprovisos to Section 2.14(d)(iv), if applicable, the Borrower at its election (in its sole discretion) may pay upfront or closing fees in respect of all Incremental any Supplemental Term Loan Commitments and shall not be obliged to pay such upfront or closing fees in respect of the existing Tranche of Term Loans and Incremental Revolving Commitmentsto which such Supplemental Term Loan Commitments pertain, together except to the extent that such fees would cause such Supplemental Term Loan Commitments not to be fungible with the aggregate principal amount applicable Tranche of Term Loans).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, an Escrow Borrower (if applicable) and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any Permitted Incremental Equivalent Debtother Lender, shall not exceed effect such amendments to any Loan Documents as may be necessary or appropriate, in the Incremental Cap;
opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.14 (B) (x) including, without limitation, with respect to any Incremental Term Loans Commitments to be secured on a junior basis by the Collateral, appropriate modifications, if any, to Sections 2.05(b)(vi), 8.02 and 8.04 of this Agreement and to the Collateral Documents), provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors (it being incurred understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Guarantor), and if secured (other than with respect to finance Permitted Escrow Funds in respect of any such Incremental Commitments that are subject to a Permitted Acquisition Escrow Arrangement (but only for so long as such Incremental Commitments are subject to such Permitted Escrow Arrangement)), will be secured on a pari passu or a similar permitted Investment designated (at the Borrower’s option) junior basis by the Parent Borrower same Collateral securing the Loans (so long as a any such secured Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Limited Conditionality AcquisitionIncremental Loans”, no Default or Event ) shall rank pari passu in right of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition payment with or (yat the Borrower’s option) otherwise, junior to the Loans (so long as of any such Incremental Commitments (and related Obligations) are subject to the applicable Incremental Facility Activation Date, immediately prior to Intercreditor Agreement or an Other Intercreditor Agreement) and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of no Incremental Commitment Amendment may provide for any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of Commitment or any Incremental Term Loans and to be secured by any Incremental Revolving Commitments thereunder Lien on assets (and assuming, in the case of any Additional Credit Extension Amendment other than with respect to Permitted Escrow Funds in respect of any such Incremental Revolving Commitments Loans that are subject to a Permitted Escrow Arrangement (but only for so long as such commitments Incremental Loans are fully drawnsubject to such Permitted Escrow Arrangement)) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party that do not also secure the Loans; (ii) no Lender will be true and correct in all material respects, except and solely required to the extent required by the lenders providing provide any such Incremental Facility;
Commitment unless it so agrees; (Eiii) the weighted average life Maturity Date and the Weighted Average Life to maturity Maturity of any such Incremental Term Facility Commitments shall be no earlier than or shorter than, as the weighted average life case may be, the Maturity Date or the Weighted Average Life to maturity Maturity of the Initial Term Facility Loans, as applicable (except in the case of each case, other than an earlier maturity date or shorter Weighted Average Life to Maturity (x) for customary high-yield bridge loans financings, which, subject to customary conditions (including no payment or bankruptcy event of default)conditions, would either be automatically be converted into or required to be exchanged for permanent Indebtedness that financing which does not have provide for an earlier maturity date or a shorter weighted average life Weighted Average Life to maturity Maturity than the Maturity Date of the Initial Term FacilityLoans or the Weighted Average Life to Maturity of the Initial Term Loans, as applicable, or (y) pursuant to a Permitted Escrow Arrangement with respect to the proceeds of the Incremental Loans made pursuant to such Incremental Commitments (but only for so long as such Incremental Loans are subject to such Permitted Escrow Arrangement);
); (Fiv) all the currency, interest rate margins, (subject to Section 2.14(d)(iii)) amortization schedule, original issue discount (“OID”), upfront fees and interest rate floors (if any) applicable to the loans made pursuant to the New Term Facilities shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any second lien (i.e., secured on a pari passu basis with the Lien securing the Loans) syndicated floating rate term loans denominated in Dollars incurred under any Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Loan Commitments shall rank pari passu in right of payment and right of security or Supplemental Term Loan Commitments (x) with a Stated Maturity that is earlier than 24 months following the Maturity Date in respect of the Collateral with Initial Term Loans and (y) in an aggregate principal amount in excess of $50.0 million, are higher than the applicable interest rate margin for the Initial Term Loans by more than 50 basis points, then the effective interest rate margin for the Initial Term Loans at the time such Incremental Term Loan Commitments or Supplemental Term Loan Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitments or Supplemental Term Loan Commitments minus 50 basis points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); provided, further that, in determining the applicable interest rate margins for the Initial Term Loans and the Revolving Incremental Loans and none incurred under such Incremental Term Loan Commitments or Supplemental Term Loan Commitments, (A) OID or upfront fees payable generally to all participating Lenders in lieu of the obligors or guarantors with respect thereto OID (which shall be a Person that is not a Loan Party;
deemed to constitute like amounts of OID) payable by the Borrower to all Lenders under such Initial Term Loans or any such Incremental Loans, as applicable, in the initial primary syndication thereof shall be included (Gwith OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility(provided that, if such Initial Term Loans are issued in a manner such that all such Initial Term Loans were not consistent issued with a uniform amount of OID or upfront fees within the applicable existing Tranche of Initial Term FacilityLoans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring or other fees payable in connection with such Incremental Loans that are not shared with all Additional Lenders providing such Incremental Loans shall, in each case, be excluded; (C) any amendments to the Applicable Rate or effective interest rate margin on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the effective time of such Incremental Loans shall also be included in such calculations; (D) if such Incremental Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Rate for such Initial Term Loans shall be required, to the extent an increase in the interest rate floor for such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to such Initial Term Loans shall be increased by such amount to the extent necessary to adjust the applicable Existing Interest Rate to be equal to the applicable Adjusted Interest Rate; (E) if such Incremental Loans include an interest rate floor lower than the interest rate floor applicable to the Initial Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Initial Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the Parent Borrower interest rate floor applicable to the Initial Term Loans and the lenders for interest rate floor applicable to such Incremental Term Facility and reasonably satisfactory Loans (which shall be deemed to equal 0% for any Incremental Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Administrative Agent; provided that each Incremental Initial Term Facility Loans would cause a reduction in the interest rate then in effect thereunder, shall share ratably in any mandatory prepayments reduce the applicable interest rate margin of the applicable Incremental Loans for purposes of determining whether an increase in the Existing Interest Rate shall be required; and (F) if the Initial Term Facility unless Loans include a pricing grid the Parent Borrower interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities and (3) for the amendment of the definitions of “Additional Permitted Obligations”, “Contribution Indebtedness”, “Disqualified Stock”, this Section 2.14(d), Section 7.03(b)(xiv) and Section 7.10(b), in each case only to extend the maturity date and the lenders Weighted Average Life to Maturity requirements from the Maturity Date and Weighted Average Life to Maturity in respect of the Initial Term Loans to the extended maturity date and the Weighted Average Life to Maturity in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall 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 amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.; and
Appears in 1 contract
Sources: Second Lien Credit Agreement (Syniverse Holdings Inc)
Incremental Facilities. (a) The Parent Borrower and/or At any Additional Borrower time, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by B▇▇▇▇▇▇▇▇, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than one (1) occasion during any calendar quarter. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $50,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (including New Lendersor other prospective lenders) may from time reasonably satisfactory to time agree that Agent and Borrowers to provide the applicable Increase and any such Lenders shall make(or prospective lenders), obtain or increase the amount of their Incremental Term Loans or Revolving Commitments Borrowers, and Agent have signed a joinder agreement to this Agreement (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental FacilityIncrease Joinder”), as applicablein form and substance reasonably satisfactory to Agent, by executing to which such Lenders (or prospective lenders), Borrowers, and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, are party,
(ii) each of the applicable Incremental Facility Closing Date, conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the applicable Borrower(s) Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board,
(iv) in the case of Incremental Term Loans, Borrowers have delivered to Agent updated pro forma Projections (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred applicable Increase) for the Loan Parties and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (including giving pro forma on a month-by-month basis) immediately following the proposed date of the applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and
(v) Borrowers shall have reached agreement with the Lenders (or prospective lenders) agreeing to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving increased Revolver Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental the interest margins applicable to Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition Loans to be made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition pursuant to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party increased Revolver Commitments (which interest margins may be true and correct in all material respects, except and solely with respect to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of pursuant to the Collateral with increased Revolver Commitments, higher than or equal to the Term Loans and the interest margins applicable to Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory Agreement immediately prior to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments date of the applicable Term Facility unless increased Revolver Commitments (the Parent Borrower and date of the lenders in respect effectiveness of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving the increased Revolver Commitments and the Revolving Loans in respect thereof Maximum Revolver Amount, the “Increase Date”)) and shall be pursuant have communicated the amount of such interest margins to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without Agent. Any Increase Joinder may, with the consent of the Administrative Agent, (x) each increase effected pursuant Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this paragraph shall be in a minimum amount of at least $50,000,000 Agreement and (y) no more than five Incremental Facility Closing Dates the other Loan Documents as may be selected by necessary to effectuate the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in provisions of this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment2.14.
(c) Unless otherwise agreed by the Administrative Agentspecifically provided herein, on each Incremental Facility Closing Date with respect all references in this Agreement and any other Loan Document to the Revolving Facility, each Borrower shall borrow Revolving Loans under shall be deemed, unless the relevant increased context otherwise requires, to include Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed made pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable increased Revolver Commitments and Maximum Revolver Amount pursuant to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.14.
(d) Notwithstanding anything Each of the Lenders having a Revolver Commitment prior to the contrary Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in this Agreement, each the Revolving Loans and participation interests in Letters of the parties hereto hereby agrees Credit on such Increase Date as shall be necessary in order that, on each Incremental Facility Closing Dateafter giving effect to all such assignments and purchases, this Agreement shall such Revolving Loans and participation interests in Letters of Credit will be amended held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoincreased Revolver Commitments.
(e) The Closing Date Incremental Revolving Commitments Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be provided on entitled to all the Closing Date as Incremental Revolving Commitmentsbenefits afforded by, subject this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving establishment of any such new Revolver Commitments and without any further amendment to this AgreementMaximum Revolver Amount.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall make, obtain one or increase more increases in the amount of their Incremental Term Loans or the Revolving Commitments of any Class (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Commitment Increase”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term LoansCommitments, (w) provided that the applicable aggregate amount of all the Incremental Revolving Commitment Increases and Incremental Term Maturity Date, (x) Commitments to be established hereunder on any date shall not exceed the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
sum of (A) the Incremental Base Amount as of such date plus (A) assuming that the full amount of such Incremental Revolving Commitment Increases and/or such Incremental Term Commitments have been funded as Loans on such date, an additional aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitmentssuch that, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making establishment of any Incremental Revolving Commitment Increases and/or Incremental Term Loans Commitments and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting use of proceeds thereof and any Permitted Acquisition made with thereof, the proceeds thereof)), with the financial covenants set forth Borrower shall be in Section 7.1pro forma compliance, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower Test Period for which financial statements are available;
have been delivered pursuant to Section 5.01(a) or 5.01(b) (D) in no event shall it be a condition or, prior to the effectiveness ofdelivery of any such financial statements, the last day of the last fiscal quarter included in the Latest Financial Statements), with a First Lien Secured Leverage Ratio that is no greater than 3.25:1.00; provided further that solely for the purpose of calculating the First Lien Secured Leverage Ratio under this clause (B), the Consolidated First Lien Debt Cash Netting Amount shall be capped at $100,000,000. Each such notice shall specify (1) the date on which the Borrower proposes that the Incremental Revolving Commitment Increases or Borrowing underthe Incremental Term Commitments, as applicable, shall be effective, and (2) the amount of the Incremental Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Facility that any representation Revolving Commitment Increase or warranty of any Loan Party be true and correct Incremental Term Commitment may elect or decline, in all material respectsits sole discretion, except and solely to the extent required by the lenders providing provide such Incremental Facility;
Revolving Commitment Increase or Incremental Term Commitments, (Ey) the weighted average life Borrower shall not be required to maturity approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the Borrower proposes to become a Lender under any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment Commitment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Commitment Increase, if such Person that is not then a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Lender, all terms of any Incremental Term Facilitymust be an Eligible Assignee and, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent Agent would be required for an assignment of such Loans or Commitments pursuant Commitment to Section 10.6 (such consent not to be unreasonably withheldLender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Commitment Increase, if any consent of each Issuing Bank would be required for an assignment of Revolving Loans or a Revolving Commitment to such Lender, each Issuing Bank).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that any interest margins, commitment fees, pricing and rate floors applicable to any Incremental Revolving Commitment Increase may exceed the Issuing interest margins, commitment fees, pricing and rate floors payable with respect to the Revolving Loans and/or Revolving Commitments pursuant to the terms of this Agreement, as amended through the date of such calculation, in which case the Applicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case as in effect for the other Revolving Loans and Revolving Commitments, shall be automatically increased to eliminate such excess (it being understood that additional upfront or similar fees may be payable to the Lenders participating in such Incremental Revolving Commitment Increase without any requirement to pay such amounts to any existing Revolving Lenders). The terms and conditions of any Incremental Term Commitments and the Swingline Lender Incremental Term Loans to be made thereunder shall be set forth in the applicable Incremental Facility Agreement; provided that (A) no Incremental Term Loan Maturity Date shall be earlier than the latest Maturity Date then in effect, (B) the scheduled amortization and optional or mandatory prepayment terms and provisions, including in respect of the allocations of payments to or within any such Class of any such Incremental Term Loans shall be based on current market terms at the time of incurrence thereof, (C) any Incremental Term Loan shall be secured only by the Collateral securing the Obligations on an equal priority basis with the Liens on the Collateral securing the Obligations and (iiD) no Incremental Term Loan shall become be subject to a Lender under Previously Absent Financial Maintenance Covenant or other restrictive covenant not previously provided for in this Agreement unless the Administrative Agent shall be given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant or other restrictive covenant for the benefit of all Lenders. Any Incremental Term Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) Unless otherwise agreed The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Term Commitments or Incremental Revolving Commitment Increase, as the case may be, and the Administrative Agent; provided that no Incremental Term Commitments or Incremental Revolving Commitment Increases shall become effective unless (subject, in the case of Incremental Term Commitments incurred to finance a Limited Condition Transaction, to Section 1.08):
(i) no Event of Default (or in the case of Incremental Term Commitments incurred to finance a Limited Condition Transaction, no Event of Default described in clause (a), (b), (i) or (j) of Section 7.01) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments or Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such date;
(ii) 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; provided that the requirement in this clause (ii) shall only apply to Incremental Term Loans to the extent requested by the applicable Incremental Term Lenders; provided further, that in the case of Incremental Term Commitments incurred to finance a Limited Condition Transaction, such representations and warranties shall be limited to Specified Representations;
(iii) after giving pro forma effect to the establishment of any Incremental Revolving Commitment Increase or Incremental Term Loans, the incurrence of any Loans thereunder and the use of the proceeds thereof, and assuming that the full amount of such Incremental Revolving Commitment Increases shall have been funded as Loans on such date, the Borrower shall be in pro forma compliance with each Financial Maintenance Covenant, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Latest Financial Statements); and
(iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Term Commitments or Incremental Revolving Commitment Increase and the related transactions under this Section. 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 to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Term Commitment or Incremental Revolving Commitment Increase of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment Increase, (A) if the applicable Lender does not already have a Revolving Commitment, such Incremental Revolving Commitment Increase shall constitute the Revolving Commitment of such Lender as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase, (B) if the applicable Lender already has a Revolving Commitment, the Revolving Commitment of such Lender shall be increased as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase and (C) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment Increase, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment Increase, the Revolving Exposure of the Revolving Lender making such Incremental Revolving Commitment Increase, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitment Increase, each Revolving Lender shall assign to each Revolving Lender making such Incremental Revolving Commitment Increase, and each such Revolving Lender making such Incremental Revolving Commitment Increase shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment Increase.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Term Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitment Increase, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Costar Group Inc)
Incremental Facilities. (a) The Parent At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower and/or any Additional Borrower and any Representative may, by notice to the Agent (whereupon the Agent shall promptly deliver a copy of such notice to each of the Lenders), request to incur one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase increases in the amount of their Incremental Term Loans or Revolving Credit Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an the “Incremental FacilityFacilities”), as applicable, by executing and delivering . Notwithstanding anything to the Administrative Agent an Additional Credit Extension Amendment specifying (i) contrary herein, without the amount consent of such increase and the Facility or Facilities involvedRequired Lenders, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted the Incremental Equivalent Debt, Facilities from and after the ThirdFifth Amendment Effective Date shall not exceed $75.0100.0 million. All Incremental Revolving Commitments shall be in an integral multiple of $250,000 and in an aggregate principal amount that is not less than $5 million (or in such lesser minimum amount agreed by the Agent); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the Incremental Cap;Facilities.
(Bb) (x) Any Incremental Revolving Commitment shall be on terms identical to the Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby, including with respect to any Incremental Term Loans having the same Guarantors and being incurred to finance a Permitted Acquisition or a similar permitted Investment designated secured by the Parent Borrower as same Collateral on a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into pari passu basis with the applicable acquisition, merger or similar agreement governing Facility subject to such acquisition or (y) otherwise, as increase except that the Maturity Date of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or an Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Commitment shall be no earlier (but may be later) than the weighted average life Revolving Credit Commitments proposed to maturity be increased. Unless the Incremental Revolving Commitment and the Revolving Credit Commitments proposed to be increased have different Maturity Dates, such Incremental Revolving Commitment shall be deemed a Revolving Credit Commitment of the Initial Term applicable Revolving Credit Facility (except in or both Revolving Credit Facilities, as the case of customary high-yield bridge loans whichmay be, subject pursuant to customary conditions the applicable Incremental Amendment (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness it being understood that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all an Incremental Term Loans and any Revolving Loans made in respect of Facility establishing Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the will not create a separate Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Credit Facility and such Incremental Revolving Commitments shall become be deemed a part of the applicable Revolving Credit Facility); provided, that the Applicable Margin and the Commitment Fee Rate, in each case applicable to the Revolving Credit Commitments and Revolving Credit Loans of such Revolving Credit Facility, may be increased, without the consent of any Lender, in connection with the incurrence of any Incremental Revolving Commitment such that the Applicable Margin and the Commitment Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving Commitments. Any Incremental Revolving Commitments under this Agreement shall be allocated between the US Revolving Credit Facility and the Canadian Revolving Credit Facility as designated by the Borrower Representative, in consultation with the Agent; provided that the Canadian Revolving Credit Commitments (including the Canadian ABL Sublimit), after giving effect to such Additional Credit Extension Amendment;
(I) the establishment of Incremental Revolving Commitments, shall not exceed $45 million in the aggregate without the consent of the Administrative Agent, .
(xc) each increase effected Each notice from any Borrower pursuant to this paragraph Section 2.20 shall set forth the requested amount of the relevant Incremental Revolving Commitments. Any Additional Lenders that elect to extend Incremental Revolving Commitments shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by reasonably satisfactory to the Parent Borrower after the Closing Date; Representative, and
(J) 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 New Lender that elects to provide Commitments under an Incremental Facility (i) , to the extent such its consent would be required for with respect to an assignment of to such Loans or Commitments pursuant to Additional Lender under Section 10.6 9.4(b), the Agent, the Swingline Lender and each Issuing Bank (such consent in each case, any approval thereof not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loansif not already a Lender, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Incremental Amendment.
. Each Incremental Facility shall become effective pursuant to an amendment (ceach, an “Incremental Amendment”) Unless otherwise agreed to this Agreement and, as appropriate, the other Loan Documents, executed by the Administrative Borrower Representative, any applicable Borrowers, such Additional Lender or Additional Lenders and the Agent. No Incremental Amendment shall require the consent of any Lenders or any other Person other than the Borrower Representative, any applicable Borrowers, the Agent and the Additional Lenders with respect to such Incremental Amendment. The Lenders hereby irrevocably authorize the Agent to enter into Incremental Amendments and, as appropriate, amendments to the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches in respect of the existing Revolving Credit Commitments and such technical amendments as may be necessary or appropriate in the opinion of the Agent, the Borrower Representative and the applicable Borrower to effect the provisions of this Section 2.20 (including to provide for class voting provisions applicable to the Additional Lenders on each terms comparable to the provisions of Section 9.2(b)). In addition, if so provided in such Incremental Amendment and with the consent of the applicable Issuing Banks, participations in Letters of Credit expiring on or after the Maturity Date shall be re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Incremental Revolving Commitments, be deemed to be participation interests in respect of such Incremental Revolving Commitments and the terms of such participation interests (including the participation fees applicable thereto) shall be adjusted accordingly. No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Revolving Credit Commitments in respect of any Incremental Revolving Commitments shall become Revolving Credit Commitments under this Agreement. The effectiveness of any Incremental Amendment (each, an “Incremental Facility Closing Date with respect Date”) shall, unless otherwise agreed to by the Agent and the Additional Lenders party thereto, be subject to (i) the payment in full of all fees and expenses owing to the Revolving Agent and the Lenders in respect of such Incremental Facility, each Borrower shall borrow Revolving Loans under to the relevant increased extent invoiced prior to such date and (ii) the satisfaction or waiver on the date of the effectiveness of the Incremental Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference thereunder of no Specified ABL Default shall exist after giving effect to the amount of each Type of Loan of such Borrower Incremental Revolving Commitments (andor, in the case of Eurocurrency Loans a Permitted Acquisition, permitted Investment or Term Benchmark LoansLimited Condition Transaction, no Specified ABL Default (as determined in accordance with Section 1.5(d)) shall exist on the LCT Test Date and no Specified Event of Default shall exist on the date that such Incremental Revolving Commitments become effective). Upon each Eurocurrency Tranche or Term Benchmark Trancheincrease in the Revolving Credit Commitments of a Revolving Credit Facility pursuant to this Section 2.20, as applicableeach Lender under such Revolving Credit Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each an “Incremental Lender”) which would then have been outstanding from in respect of such Lender if (i) increase, and each such TypeIncremental Lender will automatically and without further act be deemed to have assumed, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected a portion of such Lender’s participations hereunder in outstanding Letters of Credit under the applicable Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender in such Revolving Credit Facility (including each such Incremental Lender) will equal the percentage of the Total Revolving Credit Commitments of all Lenders in such Revolving Credit Facility represented by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increasedLender’s Revolving Credit Commitment thereunder. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower Representative, take any and all actions as may be reasonably necessary to ensure that, on each after giving effect to any Incremental Facility Closing DateRevolving Commitment, the outstanding Revolving Credit Loans are held by the Lenders in accordance with their respective Applicable Lender Percentages in respect of the applicable Revolving Credit Facility. The foregoing may be accomplished at the discretion of the Agent, following consultation with the Borrower Representative, (A) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Agent and the Borrower Representative, and any such prepayment or assignment shall be subject to Section 2.15 but shall otherwise be without premium or penalty. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall be amended not apply to any of the transactions effected pursuant to the extent (but only to immediately preceding sentence. For the extent) necessary to reflect the existence and terms avoidance of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments doubt, no existing Lender shall be provided on the Closing Date as required to participate in an Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and Facility without any further amendment to this Agreementits consent.
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Sources: Abl Credit Agreement (Specialty Building Products, Inc.)