Incremental Facilities. (a) The Borrower may on one or more occasions after the Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 3 contracts

Sources: Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC)

Incremental Facilities. The Borrower may (a) ~~The Borrower may on~~ add one or more occasions after the Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new incremental term loan ~~commitments of the same Class as any outstanding Term Loan~~ facilities (~~each, a “Term Loan Increase”), or (iii) the addition of one or more 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,~~ borrowed thereunder “Incremental Term Loans”; ) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and ~~the~~ together with any Incremental Term Facilities, ~~together with the Revolving Commitment Increases and the Term Loan Increases~~collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); ~~provided that~~ provided, however, that: (a) the aggregate amount of all ~~the~~ such Incremental ~~Commitments at any time~~ Facilities shall not exceed the ~~Permitted Incremental Amount applicable to the Incremental Commitments at such time~~ sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent ~~Indebtedness~~ Debt issued, incurred ~~pursuant to clause (w) of the definition of “Permitted Debt”. Each such notice shall specify (i) the date~~ or otherwise obtained in reliance 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), ~~but~~ (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent ~~an increase~~ accompanied by a permanent reduction in the ~~Term SOFR or Alternate Base Rate floor applicable to~~ Revolving Credit Commitments therefor), in each case, not made with the ~~existing Term Loans would cause an increase in~~ proceeds of any long-term indebtedness (excluding, for the ~~interest rate then in effect thereunder~~avoidance of doubt, ~~and in such case~~ Revolving Loans) (it being understood that (I) the ~~Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans~~ Borrower shall be ~~increased~~ deemed to have used capacity under clause (i) (to the extent ~~of such differential between interest rate floors;~~ compliant therewith) before capacity under clauses (ii) ~~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 B Term Loans~~ or (~~without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans~~iii); , and capacity under clause (iii) ~~no Incremental Maturity Date of any Incremental Term Facility~~ shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required deemed to be ~~exchanged for permanent financing the stated maturity of which shall~~ used before capacity under clause (i) and (II) loans may be ~~no earlier than the initial Tranche B Term Maturity Date~~incurred under clauses (i); , (ivii) and (~~x) subject to~~ iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) ~~above,~~ may be utilized in a single transaction or series of related transactions by first calculating the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees~~ incurrence under clause (ii) and then calculating the ~~amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and~~ incurrence under clause (iii)); (b) the Incremental ~~Lenders~~ Facilities and ~~(y) all other terms~~ related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured; (c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if ~~not consistent with~~ the ~~terms~~ proceeds of the ~~Tranche B Term~~ Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in ~~any material respect~~this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing; (d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents 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~~ remain true and correct in ~~effect~~ all material respects on the effective date of such Incremental Facility ~~Agreement)~~ (~~it being understood that~~ where not already qualified by materiality, otherwise in all respects), except 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~~ same expressly relate 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 an 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~~ they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such ~~prior~~ earlier date, (iii) 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, ; provided that if the proceeds of ~~any~~ the Incremental Facility are ~~intended to be applied~~ used substantially concurrently to finance a Limited Condition Acquisition, to then at the ~~extent agreed by~~ election of the ~~applicable Lenders providing such Incremental Commitments~~Borrower, the ~~conditions precedent~~ foregoing condition in this clause (d) shall only be required to be satisfied on the ~~Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: (i) (x)~~ LCT Test Date; provided, however, that 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~~ consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers); (e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date; (f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds); (g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental ~~Loans,~~ Term Facility; provided that such terms either (A) ~~no Event~~ reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of ~~Default under Section 7.01(b), (c), (g)~~ incurrence or ~~(h) (Events of Default), shall have occurred and be continuing and~~ effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only ~~representations and warranties~~ to periods after the ~~accuracy~~ latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be ~~a condition to funding such~~ agreed upon by the Borrower and the Lenders providing the Incremental ~~Loans~~ Facility. Upon the effectiveness thereof, Schedule 2.2 shall be ~~the Specified Representations (conformed as necessary~~ deemed amended to ~~apply to such Limited Condition Acquisition)~~ reflect any Revolver Increase and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and warranties set forth in Article III on the date of such closing and funding of such Limited Condition Acquisitionnew Lender (or, ~~it being understood and agreed that only the representations and warranties set forth in clause (B~~if applicable, existing Lender) shall ~~be conditions to funding of~~ advance Revolving Loans in an amount sufficient such ~~Incremental Loans on such closing date; (ii)~~ that after giving effect to ~~such~~ its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental ~~Commitments~~ Facility and ~~the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower~~ no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderFacility. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 3 contracts

Sources: Credit Agreement (Dynatrace, Inc.), Credit Agreement (Dynatrace, Inc.), Credit Agreement (Dynatrace, Inc.)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ 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 same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 cumulative aggregate original amount of all the Incremental Commitments at 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 ~~time shall not~~ 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 ~~Permitted~~ Maximum Incremental Amount ~~applicable to the Incremental Commitments at~~ in effect on such ~~time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~date. Each such notice shall specify (iA) 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 ~~ten~~ five (105) 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 (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, (1) if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and (2) in the case of an Incremental 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 maturity date of any Incremental 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 be, except as otherwise set forth herein or in an the applicable Incremental Facility ~~Agreement; provided that~~Amendment, ~~in any event,~~ substantially identical to those of (ix) if any Term Loans then exist, such existing Term Loans or (y) if no Term Loans then exist, the ~~Weighted Average Yield applicable~~ Revolving Commitments and Revolving Loans (with appropriate modifications to ~~any~~ reflect nature of such Incremental Term Facility and the Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans~~made thereunder as term loans); provided, that, if (i) the upfront fees, interest rates, call protection, mandatory prepayments and amortization schedule applicable to any Incremental Term ~~Loans or~~ Facility and Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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~~ determined by the ~~extent of such differential between interest rate floors;~~ 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 shall be no shorter than the remaining weighted average life to maturity of the ~~Tranche B~~ Class of existing Term Loans with the longest remaining weighted average life to maturity at such time (~~without giving effect to prior prepayments that would otherwise modify~~ or, in the case of Incremental Term Loans which are Term B Loans, the weighted average life to maturity of any then-existing Class of Term B Loans with the ~~Tranche B Term Loans~~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 ~~Incremental~~ 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 ~~shall be earlier than~~ and the ~~initial Tranche B~~ Incremental Term ~~Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required~~ Loans to be ~~exchanged for permanent financing~~ made thereunder shall not be materially more favorable, taken as a whole, to the ~~stated maturity of which shall be no earlier~~ lenders providing such Incremental Term Facility than ~~the initial Tranche B Term Maturity Date); (iv)~~ (x) ~~subject to clauses (ii) and (iii) above~~if any Term Loans then exist, the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule~~ terms applicable to ~~any Incremental Facility shall be determined by the Borrower and the Incremental Lenders and~~ such existing Term Loans or (y) ~~all~~ if no Term Loans then exist, the terms applicable to the Revolving Commitments and Revolving Loans (in each case as determined by Holdings in good faith), other ~~terms~~ than (A) (I) covenants or other provisions applicable only to periods after the Latest Maturity Date at such time and (II) covenants or other provisions that are also for the benefit of ~~any~~ the Lenders in respect of the Loans and Commitments outstanding at the time such Incremental Term Facility is incurred and (B) to the extent required by the lenders providing such Incremental Term Facility, ~~if not consistent~~ customary “most-favored-nation” protection, call protection, and mandatory prepayments, in each case, which may be applicable solely with ~~the terms of the Tranche B~~ respect to such Incremental Term Facility in any 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~~ a mandatory prepayment is ~~added for~~ required in connection with the ~~benefit~~ 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 ~~or any~~ that are Term B Loans, such Incremental Term ~~Commitments~~Loans that are Term B Loans may, ~~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 so provided in the applicable Incremental Facility ~~Agreement;~~ Amendment, specify whether (x) the 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 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) ~~any~~ all Incremental ~~Commitments and Incremental Loans shall, as elected~~ Term Facilities shall be secured by the ~~Borrower, be equal or junior in right of payment~~ Collateral on a pari passu basis with ~~any remaining portion of~~ the ~~Facilities and, with respect to security with any remaining portion of the Facilities, pari passu, junior or unsecured~~ other Loan Document Obligations and (vii) no Incremental Term Facility shall ~~not~~ be secured by any property or assets of Holdings or any of their Subsidiaries other than the Collateral ~~securing the Facilities~~ or be guaranteed by any Person ~~that does not guarantee the Facilities (provided that any such Incremental Commitments or Incremental Loans~~ other than Holdings and Subsidiaries that are ~~pari passu with or junior~~ Subsidiary Loan Parties. Any Incremental Term Commitments established pursuant to ~~the Facilities with respect to security~~ an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be ~~subject to the Pari Passu Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement,~~ designated as ~~applicable);~~ a separate series (~~vii~~each a “Series”) ~~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 Term Commitments and Incremental ~~Revolving~~ Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be ~~identical to~~ secured by 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 Collateral on a pari passu ~~in right of payment and of security~~ basis 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 ClassObligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility ~~Agreements~~ Amendments executed and delivered by ~~the Parent~~Holdings, the Borrower, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; ~~provided that~~ 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)~~subject to Section 1.05, no ~~Default or~~ Event of Default shall have occurred and be continuing ~~on the date of effectiveness thereof, both~~ immediately ~~prior to~~ before and ~~immediately~~ after giving effect to such Incremental Commitments and the making of ~~Incremental~~ Loans and issuance of Letters of Credit 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)~~subject to Section 1.05, on the date of effectiveness thereof, the representations and warranties of each Loan Party 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,~~ 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, (iii) ~~after giving effect~~ the Borrower shall make any payments required to be made pursuant to Section 2.18 in connection with 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~~ related transactions under this 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 Commitments on a pro forma basis~~ 2.23 and (iv) the Borrower shall have delivered ~~or caused to have been delivered~~ to the Administrative Agent ~~such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by~~ a certificate of a Financial Officer of the Administrative Agent in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, Borrower to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 effect set forth in ~~clause~~ clauses (~~c)(i~~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~~above, together with calculations demonstrating (A) ~~no Event~~ compliance with Section 2.23(a) above (and a calculation of ~~Default under Section 7.01(b), (c), (g) or (h) (Events of Default), shall have occurred~~ the “Maximum Incremental Amount” before 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 the establishment of such Incremental Commitments and the ~~making of~~ Incremental ~~Loans~~ Facilities relating thereto) and ~~other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower~~ (B) that Holdings shall be in compliance with the Financial ~~Covenants~~ Covenant set forth in Section ~~6.12 (Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended~~ 6.11, calculated on a Pro Forma Basis as of the date of ~~effectiveness~~ establishment of such Incremental Commitments ~~on a pro forma basis~~ and Incremental Facilities relating thereto (~~iii)~~ and, for the ~~Borrower shall have delivered or caused to have been delivered to the Administrative Agent~~ avoidance of doubt, assuming for such 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 purposes that such ~~transaction. (e)~~ Incremental Facilities are fully drawn). Each Incremental Facility ~~Agreement~~ 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.23. (fd) 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~~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 set forth in the definition of the term “Revolving Commitment”. ~~Any~~ For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments established pursuant to an~~ Revolving Commitment, the Revolving Exposure of the Incremental ~~Facility Agreement that have identical terms and conditions~~Revolving Lender holding such Commitment, and ~~any Incremental Loans made thereunder~~the Applicable Percentage of all the Revolving Lenders, shall automatically be ~~designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement~~adjusted to give effect thereto. (ge) 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~~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 ~~Agreement~~Amendment. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section ~~2.21(a~~2.23(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.23(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 Borrower may on one or more occasions after the Closing Date, by written notice to the Administrative Agent, ~~request: (i) an increase~~ request the establishment of Incremental Commitments to be provided solely by Corre, Corre Affiliates or any other Eligible Assignee approved by Corre in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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”)its sole discretion; provided that the aggregate amount of ~~all~~ the Incremental Commitments at incurred under this Section 2.12 on any ~~time~~ date shall not exceed the ~~Permitted~~ Available 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”~~Amount. Each such notice shall specify (iA) the date on which the ~~Borrower~~ Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~ten~~ five (105) Business Days (or such shorter period as may be agreed to by the Administrative ~~Agent~~Agent (at the direction of the Incremental Lenders)) after the date on which such notice is delivered to the Administrative Agent and (iiB) the amount of the Incremental Commitments being requested (it being agreed that ~~(x)~~ Corre, the Corre Affiliates or any ~~Lender approached to provide any Incremental Commitment~~ such Eligible Assignee may elect or decline, in ~~its~~ their sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative AgentCommitments). (b) The terms and conditions of ~~the Incremental Commitments and the~~ any Incremental Loans to be made thereunder shall be be, except as otherwise set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~Amendment, ~~as elected by the Borrower, be equal or junior in right of payment with any remaining portion~~ substantially consistent to those 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 2025 Term 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 2025 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~~ Amendments 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 assuming that 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 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 full amount of such Incremental Commitments ~~on a pro forma basis and (iv) the Borrower~~ shall have ~~delivered or caused to have~~ been ~~delivered to the Administrative Agent~~ funded as Loans on such 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 transactiondate). (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 Commitments and Incremental Loans for all purposes of this Agreement. (ge) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility ~~Agreement~~Amendment, each Lender holding an Incremental Commitment ~~of any Series~~ shall make ~~a loan~~ an Incremental Loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility ~~Agreement~~Amendment. ~~(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 2.21(a) (Incrementa~~

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 ~~Borrower~~ Company may on one or more occasions after the Closing Date, by written notice to the Administrative Agent, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ request the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments~~ establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 incurred under this Section 2.22 on any ~~time~~ date shall not exceed the ~~Permitted~~ sum of (x) an amount equal to the Base Incremental Amount ~~applicable~~ in effect on such date, (y) an amount subject to the Maximum Incremental ~~Commitments at~~ Amount as of such ~~time less~~ date and (z) an amount equal to the ~~aggregate amount~~ Voluntary Prepayment Amount as of ~~Incremental Equivalent Indebtedness incurred pursuant~~ such date (it being understood that (A) the Company shall be deemed to have used amounts under clause (wy) above prior to utilization of amounts under clause (x) or (z) above and (B) the ~~definition of “Permitted Debt”~~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 (iA) whether the Company is requesting Incremental Term Commitments or Incremental Revolving Commitments, (B) the date on which the ~~Borrower~~ Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~ten~~ five (105) 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 (iiC) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental ~~Commitment~~ Commitments may elect or decline, in its sole discretion, to provide such Incremental ~~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)~~ Commitments and (y) any Person that the ~~Borrower~~ Company proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible ~~Assignee and must be reasonably acceptable to the Administrative Agent~~Assignee). (b) The terms and conditions of ~~the~~ any Incremental ~~Commitments~~ Term Facility and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility ~~Agreement~~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, in any event,~~ that (i) if the ~~Weighted Average Yield~~ 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 Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, then the Applicable Margin then in effect for Tranche B Facility and Incremental Term Loans shall ~~automatically~~ be ~~increased to a level such that~~ determined by the ~~Weighted Average Yield with respect to~~ Company and 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term ~~Loans or~~ Lenders providing the relevant Incremental ~~Revolving Loans~~Term Commitments, (ii) except in the case of an Incremental Term Facility effected as ~~applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable~~ an increase to ~~any~~ an 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term~~ Initial Terms Loans); , (iii) no Incremental Term Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the ~~initial Tranche B~~ Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); and (iv) (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 other terms of any Incremental Term Facility, ~~if not consistent with the terms~~ for purposes of ~~the Tranche B Term Facility in any material respect~~prepayments (either mandatory or optional), shall be ~~reasonably satisfactory to~~ treated substantially the ~~Administrative Agent~~ same as (~~except for covenants and terms that apply solely to any period after~~ or, at the ~~latest Maturity Date that is in effect on~~ election of the ~~effective date of~~ 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 ~~Agreement) (it being understood~~ Amendment that ~~to the extent any financial maintenance covenant is added for the benefit of~~ have identical terms and conditions, and any Incremental Term Loans ~~or any~~ made thereunder, shall be designated as a separate series (each a “Series”) of 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 Commitments and Incremental Term Loans ~~may participate~~ for all purposes of this Agreement. Any Incremental Revolving Commitments established pursuant to an Incremental Facility Amendment shall have substantially the 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 ~~pro rata~~ pari passu basis ~~or less than pro rata basis~~ with the Liens on the Collateral securing the other Loan Document Obligations, (~~but not on a greater than pro rata basis~~ii) 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 property or assets of the Company or any of the Subsidiaries other than the Collateral ~~securing the Facilities~~ (or ~~guaranteed by any Person~~ property or assets 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 Agreementsubstantially concurrently become Collateral), 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 unless otherwise permitted ~~hereunder, or for any other purpose not prohibited~~ by this Agreement~~; and~~ , (~~viii~~iii) ~~the Incremental Revolving Commitments and Incremental Revolving Loans~~ shall be ~~identical to~~ Guaranteed by the ~~Revolving Commitments~~ same Loan Parties that Guarantee the other Loan Document Obligations and ~~the Revolving Loans,~~ (iv) shall not be Guaranteed by any Persons other than ~~as to their Maturity Date and as set forth in~~ the Loan Parties, unless otherwise permitted by 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 ClassAgreement. (c) The Incremental Term Commitments and Incremental Term Facilities relating thereto and the Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility ~~Agreements~~ Amendments executed and delivered by the ~~Parent, the Borrower~~Company, 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 assuming that the ~~making~~ full amount of such Incremental Commitments shall have been funded as Loans ~~thereunder to be made~~ 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 applicable acquisition or investment documentation and no Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and is continuing on the 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 on the applicable 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 of each Loan Party set forth in ~~Article III and~~ the Loan Documents (or, in the ~~other Loan Documents~~ case of any Incremental Acquisition Term Facility if agreed by all applicable Incremental Term Lenders, the Specified Representations and the Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of ~~the~~ such representations and warranties qualified as to ~~materiality~~materiality or Material Adverse Effect, in all respects and (B) otherwise, in all material respects, in each ~~case,~~ 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, (iii) ~~after giving effect~~ 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 ~~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~~ related transactions under this 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 Commitments on a pro forma basis~~ 2.22 and (ivv) the ~~Borrower~~ Company shall have ~~delivered or caused to have been~~ delivered to the Administrative Agent such ~~customary~~ 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 ~~reasonably~~ be requested by the Administrative Agent in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.22. (fd) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 Commitments and Incremental Loans for all purposes of this Agreement. (ge) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility ~~Agreement~~Amendment, each Lender holding an Incremental Term Commitment of any Series shall make ~~a loan~~ an Incremental Term Loan to the ~~Borrower~~ Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility ~~Agreement~~Amendment. (hf) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender of the 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, at the principal amount thereof (together with accrued interest), such interests in the applicable Class of Revolving Loans and, in the case of the Dollar Tranche Revolving Commitments, participations in Letters of Credit and Swingline 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, 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 Revolving Lenders) ratably in accordance with their Revolving Percentages after giving effect to the effectiveness of such Incremental Revolving Commitments. 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. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~Borrower~~ Company referred to in Section ~~2.21(a~~2.22(a) and of the effectiveness of any Incremental Commitments in each case advising the Lenders of the details thereof. (~~Incrementa~~h) If an Incremental 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 make such payments on the Incremental Term Loan as required to prevent the Incremental Term Loan from being treated as an “applicable high 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 Borrower ~~may on~~ and/or any Additional Borrower and any one or more ~~occasions after~~ Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the ~~Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any~~ amount of their Incremental Term Loans or Revolving Commitments (~~each, a “~~any such increased Revolving ~~Commitment Increase” and the commitments in respect thereof~~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) ~~one or more new term loan commitments of~~ the ~~same Class as any outstanding Term Loan (each~~applicable Incremental Facility Closing Date, ~~a “Term Loan Increase”), or~~ (iii) the ~~addition~~ applicable Borrower(s) and (iv) in the case of ~~one or more new tranches of term loans (each, an “~~Incremental Term ~~Facility”;~~ Loans, (w) the ~~commitments in respect thereof “~~applicable Incremental Term ~~Commitments”~~ Maturity Date, (x) the amortization schedule for such Incremental Term Loans and ~~together with~~ (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, ~~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 principal amount of ~~all the~~ any Permitted Incremental ~~Commitments at any time~~ Equivalent Debt, 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~~ Cap; (wB) 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable with respect to any Incremental Term Loans ~~issued on~~ being incurred to finance a Permitted Acquisition or ~~prior to~~ a similar permitted Investment designated by the ~~date that~~ Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is ~~twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms~~ continuing as of ~~this Agreement, as amended through~~ the date of entry into the applicable acquisition, merger or similar agreement governing such ~~calculation~~acquisition or (y) otherwise, 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 then-remaining Weighted Average Yield as of the ~~Tranche B Term Loans); provided~~applicable Incremental Facility Activation Date, ~~that, if~~ immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 pursuant 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~~ has occurred and be is 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 or 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementaresult therefrom;

Appears in 2 contracts

Sources: Amendment No. 4 (Somnigroup International Inc.), Credit Agreement (Tempur Sealy International, Inc.)

Incremental Facilities. (a) The Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent~~Agent elect to request (A) prior to the Revolving Commitment Termination Date, ~~request: (i)~~ an increase ~~in any~~ to the existing Revolving Commitments (~~each~~any such increase, ~~a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof,~~ “Incremental Revolving Commitments”), ) and/or (iiB) prior to the Tranche BRestatement Effective Date Term Loan Maturity Date, the establishment of one or more new term loan commitments of (the ~~same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an~~ “Incremental Term ~~Facility~~Loan Commitments”; ~~the commitments in respect thereof “Incremental Term Commitments” and~~ together with the Incremental Revolving Commitments, the “Incremental ~~Commitments~~Facilities”; ), by an amount not in excess of, at any time on and after the ~~loans made~~ 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 ~~commitments, “~~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 fully drawn and (y) the cash proceeds of any Incremental Revolving Loans and Incremental Term ~~Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the “Incremental Facilities”~~Loans are not netted from Indebtedness for purposes of calculating such First Lien Leverage Ratio); provided that ~~the~~ no such Incremental Revolving Commitments or Incremental Term Loan Commitments shall be in an aggregate amount of 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 ~~the~~ such Incremental Revolving Commitments ~~at any time shall not exceed the Permitted~~ and Incremental ~~Amount applicable~~ Term Loan Commitments obtained prior to ~~the Incremental Commitments at~~ such ~~time less the aggregate amount of Incremental Equivalent Indebtedness incurred~~ date pursuant to clause (wi) above), and integral multiples of ~~the definition~~ $5,000,000 in excess of ~~“Permitted Debt”~~that amount. Each such notice shall specify (iA) 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 ~~ten (10)~~ 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 (iiB) the ~~amount~~ 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 proposes any portion of such Incremental Revolving Commitments ~~being requested (it being agreed~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that ~~(x)~~ 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 ~~any~~ all or a portion of the Incremental ~~Commitment~~ 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 Limited Condition Acquisitions, no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental ~~Commitment~~ Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) Facilities; (2) subject to the terms and conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, both before and after giving effect to the making of any ~~such Lender that fails~~ Series of Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (3) subject to ~~respond~~ the terms and conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, Holdings shall be in pro forma compliance (calculated in accordance with the definition of Consolidated Adjusted EBITDA) with each of the covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter, after giving effect to such ~~approach~~ Incremental Revolving Commitments or Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the 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 ~~deemed~~ effected pursuant to ~~have declined to provide such~~ one or more Joinder Agreements executed and delivered by the Borrower, the Incremental ~~Commitment~~Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the ~~case may be~~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) ~~and (y) any Person that~~ the Borrower ~~proposes~~ shall make any payments required pursuant to ~~become an~~ Section 2.18(c) in connection with the Incremental ~~Lender~~Revolving Commitments or Incremental Term Loan Commitments, if as applicable; (6) all other fees and expenses owing in respect of such ~~Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable~~ increase to the Administrative Agent), the Collateral Agent and the Lenders will have been paid; (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) ~~The~~ On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and ~~conditions~~ 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 Loan Lender of any Series shall 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 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 Borrower’s notice of each Increased Amount Date and in respect thereof (yx) 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 (zy) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. (e) The terms and provisions of the Incremental Term Loans ~~to be made thereunder~~ and Incremental Term Loan Commitments of any Series shall be 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 shall be identical to the Revolving Loans and such Incremental Revolving Loans will be documented solely as an ~~Incremental Facility Agreement; provided that~~increase to the Revolving Commitments, without any change in terms other than any ~~event,~~ 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). In any event (i) if the Weighted Average ~~Yield applicable~~ Life to ~~any~~ Maturity of all Incremental Term Loans ~~issued on~~ 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 ~~date that is twelve~~ 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 (12iii) ~~months after~~ if the ~~Closing Date~~ “yield” of any relevant Loan exceeds the “yield” on the existing Term Loans by more than ~~0.50% per annum~~ 50 basis points, the applicable ~~Weighted Average Yield payable pursuant to~~ margins for the ~~terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B~~ existing Term Loans shall ~~automatically~~ be increased to ~~a level such~~ the extent necessary so that the ~~Weighted Average Yield with respect to the Tranche B~~ “yield” on such 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 50 basis points less than the ~~then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any~~ “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 ~~Incremental Revolving~~ 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, ~~as applicable~~(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 ~~a Term SOFR or Alternate Base Rate~~ an interest rate floor ~~that is~~ greater than the ~~Term SOFR or Alternate Base Rate~~ applicable interest rate floor ~~applicable to any~~ under the existing ~~Class of~~ Term Loans, such differential between interest rate floors ~~shall be included in~~ equated to the ~~calculation of Weighted Average Yield~~ applicable interest rate margin for purposes of ~~this clause (i)~~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 ~~Term SOFR or Alternate Base Rate~~ interest rate floor ~~applicable to~~ in 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~~ interest rate floor (but not the ~~applicable rate~~interest rate margin) applicable to the existing Term Loans shall be increased to the extent of such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ Joinder Agreement may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement and the other ~~Loan~~ CreditLoan Documents as may be necessary or appropriate, in the opinion of the Administrative ~~Agent,~~ 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.24. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (RadNet, Inc.), Credit and Guaranty Agreement (RadNet, Inc.)

Incremental Facilities. (a) The Borrower ~~may on one or more occasions~~ may, by written notice to, and subject to the consent of, the Administrative Agent, elect to request at any time after the Closing Date, ~~by written notice to~~ the ~~Administrative Agent, request: (i) an increase in any Revolving Commitments (each,~~ establishment of a ~~“Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more~~ new term loan ~~commitments of~~ commitment (the ~~same Class as any outstanding~~ “New Term Loan ~~(each, a “Term Loan Increase~~Commitment”), ~~or (iii)~~ up to an amount not in excess of the addition of one or more 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 Maximum New 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”Commitment Amount. ~~Each~~ Any such notice shall specify (i) the date (the “Increased Amount Date”) on which the Borrower proposes that the ~~Incremental Commitments~~ New Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days ~~(or such shorter period as may be agreed to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent or such shorter period of time as consented to by the Administrative Agent and (ii) the ~~amount~~ identity of each Lender or other Person that is an Eligible Assignee (each, a “New Term Loan Lender”, as applicable) to whom the ~~Incremental Commitments being requested~~ Borrower proposes any portion of such New Term Loan Commitment be allocated and the amounts of such allocations (~~it being agreed~~ or requests that ~~(x)~~ the Administrative Agent identify and propose New Term Loan Lenders); provided that any Lender approached to provide ~~any Incremental~~ all or a portion of the New Term Loan Commitment may elect or decline, in its sole discretion, to provide ~~such Incremental Commitment (~~a New Term Loan Commitment; provided, further, that each Lender 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~~ other Person that the Borrower proposes to become ~~an Incremental Lender, if such Person is not then~~ a ~~Lender, an Affiliate of a~~ New Term Loan Lender ~~or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to ~~the~~ Administrative Agent). (b) ~~The terms~~ Such New Term Loan Commitments shall become effective as of such Increased Amount Date; provided that: (i) the Administrative Agent has consented thereto; (ii) no Trigger Event, DSCR Failure, violation of any Concentration Limit, Default, Event of Default or Servicer Replacement Event shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitment or the making of any New Term Loans; (iii) the Borrower shall be required to use the proceeds of such New Term Loans to acquire additional Eligible Railcars (such additional Railcars, collectively, the “New Term Loan Railcars”) together with related Leases, each of which must be an Eligible Lease and ~~conditions~~ in the aggregate have a weighted average monthly lease rate of equal to or greater than the aggregate weighted average monthly lease rate of the ~~Incremental Commitments~~ existing Portfolio Leases that are Eligible Leases. Each such Railcar and each such Lease, as a condition to the making of any New Term Loan, shall be added to the Portfolio and become subject to the Lien of the Collateral Documents; (iv) the Borrower shall provide to the Lenders and the ~~Incremental Loans~~ New Term Loan Lenders, prior to ~~be made thereunder~~ the Increased Amount Date, a complete Funding Package and Railcar Portfolio Data Set for each New Term Loan Railcar, and the Independent Appraisal included within such Funding Package shall be issued and dated within 90 days prior to the Increased Amount Date; (v) the amount borrowed pursuant to the New Term Loans shall not, on the Increased Amount Date, exceed the New Term Loan Advance Rate; (vi) both before and after giving effect to the making of any New Term Loans, each of the conditions set forth in ~~an Incremental Facility Agreement; provided that~~Section 4.02 shall be satisfied, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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 calculationmutatis mutandis, with respect to ~~Tranche B Term Loans, then~~ the ~~Applicable Margin then in effect for Tranche B~~ New Term Loans ~~shall automatically be increased to a level such that~~ and the ~~Weighted Average Yield with respect to~~ New Term Loan Railcars; (vii) the ~~Tranche B~~ New 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving LoansLoan Commitments, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ Joinder Agreements executed and delivered by the ~~Parent~~Borrower, the ~~Borrower~~New Term Loan Lenders, ~~each Incremental Lender providing such Incremental Commitments~~ as applicable, 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 (, and each of which shall be ~~governed by clause (d) below), no Default or Event of Default shall have occurred~~ recorded in the Register 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 each New Term Loan Lender 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 subject 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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)~~ Section 3.01(d); 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iiiviii) the Borrower shall ~~have delivered~~ deliver or ~~caused~~ cause to ~~have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably~~ be ~~requested by the Administrative Agent~~ paid any fees 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 necessary or appropriate, in the opinion favor of the Administrative Agent, ~~to give effect to the provisions of this Section, including, without limitation~~any Lender, 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 New Term Loan Lender or ~~appropriate in the reasonable opinion of the Administrative Agent and the Borrower~~ any other Creditor in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 New Term ~~Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder~~Loan Commitment. (fc) ~~Upon~~ On any Increased Amount Date on which any New Term Loan Commitments are effective, subject to 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~~ satisfaction 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. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical foregoing terms and conditions, ~~and any Incremental Loans made thereunder, shall be designated as a separate series~~ (i) each a “Series”) of Incremental 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 New Term Loan Lender ~~holding an Incremental Commitment of any Series~~ shall make a ~~loan~~ Loan to the Borrower (the “New Term Loans”) in an amount equal to ~~such Incremental~~ its New Term Loan Commitment on and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the ~~date specified in such Incremental Facility Agreement~~New Term Loan Commitment and the New Term Loans made pursuant thereto. (hd) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders, subject to the terms and conditions contemplated by this Section 2.14. (e) The terms and provisions of the ~~Administrative Agent~~ New Term Loan and New Term Loan Commitments shall be as set forth herein including, without limitation, that (i) the maturity date of ~~any notice~~ the New Term Loans shall be the Maturity Date and (ii) the amortization of the New Term Loans shall be calculated on the same basis as the other Loans; provided that the New Term Loans may bear interest on the outstanding principal amount thereof at a rate per annum equal to or less than the Applicable Rate and may have upfront fees differing from the ~~Borrower referred~~ upfront fees payable to the Lenders initially party hereto (which such upfront fees shall be paid or netted from the proceeds of such New Term Loans). The terms of the New Term Loan and New Term Loan Commitments, including any amendments to the Loan Documents required to implement such terms, shall be set forth in ~~Section 2.21(a) (Incrementa~~the Joinder Agreement relating to such New Term Loan.

Appears in 2 contracts

Sources: Term Loan Agreement (Trinity Industries Inc), Term Loan Agreement (Trinity Industries Inc)

Incremental Facilities. (a) The Parent Borrower on behalf of the Borrowers may ~~on one or more occasions after the Closing Date,~~ by written notice to Administrative Agent elect to request the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition establishment of one or more ~~new tranches of term loans~~ increases in New Revolving Credit Commitments (~~each, an~~ the “Incremental ~~Term Facility~~Revolving Credit Commitments”~~; the commitments~~ ), by an aggregate amount not in ~~respect thereof “Incremental Term Commitments” and~~ excess of (when taken together with the aggregate amount (the “Excess Amount”) of 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 Revolving ~~Commitments,~~ Credit Commitments become effective) $1,500,000,000 in the “aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between $1,500,000,000 and all such Incremental ~~Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the Incremental Term Facilities,~~ Revolving Credit Commitments (when taken together with the Excess Amount on the date such Incremental Revolving ~~Commitment Increases and the Term Loan Increases, the “Incremental Facilities”~~Credit Commitments become effective) obtained on or prior to such date); 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 (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 ~~(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~~ Agent. The Parent Borrower may approach any Lender or any other Person (iiother than a natural person) ~~the amount~~ to provide all or a portion of the Incremental ~~Commitments being requested (it being agreed~~ Revolving Credit Commitments; provided that ~~(x)~~ any Lender offered or approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Incremental Revolving Credit Commitment. In each case, such Incremental ~~Commitment (and any such Lender that fails to respond to such approach~~ Revolving Credit Commitments shall ~~be deemed to have declined to provide such Incremental Commitment~~become effective, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the ~~Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement~~applicable Increased Amount Date; provided ~~that, in any event,~~ that (i) ~~if the Weighted Average Yield applicable to any Incremental Term Loans issued~~ no Default or Event of Default shall exist on such Increased Amount Date before or ~~prior to the date that is twelve (12) months~~ after the Closing Date 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, then the Applicable Margin then in giving 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~~ Revolving Credit Commitments, as applicable; (~~other than a shorter Weighted Average Yield for customary bridge financings, which, subject~~ ii) both before and after giving effect 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 ~~then-remaining Weighted Average Yield~~ making of ~~the Tranche B Term Loans); provided, that, if~~ any ~~Incremental Term Loans or~~ Incremental Revolving Loans, ~~as applicable, include a Term SOFR or Alternate Base Rate floor that is greater than~~ each of the ~~Term SOFR or Alternate Base Rate floor applicable to any existing Class of Term Loans, such differential between interest rate floors~~ conditions set forth in Section 7 shall be ~~included in~~ satisfied; (iii) the calculation of Weighted Average Yield for purposes of this clause (i), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, Parent Borrower and ~~in such case the Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans~~ its Restricted Subsidiaries shall be ~~increased to~~ in Pro Forma Compliance with the extent of such differential between interest rate floors; (ii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity covenant set forth in Section 10.9 of the ~~Tranche B Term Loans (without~~ CF Agreement as of the last day of the most recently ended fiscal quarter after giving effect to ~~prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii) no~~ such Incremental ~~Maturity Date of~~ Revolving Credit Commitments and any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required Investment to be ~~exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date);~~ consummated in connection therewith; (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 Credit Commitments shall be effected pursuant to one or more ~~Incremental Facility~~ Joinder Agreements executed and delivered by the ~~Parent, the Borrower, each Incremental Lender providing such Incremental Commitments~~ Borrowers and ~~the~~ 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); ~~provided that no Incremental Commitments~~ (v) the Parent Borrower on behalf of the Borrowers shall ~~become effective unless (i) except as otherwise agreed by the Lenders providing the relevant Incremental Facility~~ make any payments required pursuant to Section 2.11 in connection with ~~any Limited Condition Acquisition~~ the Incremental Revolving Credit Commitments, as applicable; and (~~which~~ vi) the Parent Borrower shall ~~be governed by clause (d) below), no Default~~ deliver 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 cause to be ~~made on such date, (ii) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with~~ delivered 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered legal opinions or ~~caused to have been delivered to the Administrative Agent such 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. 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. (b) 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) ~~Notwithstanding the foregoing~~ The terms and provisions of ~~this Section 2.21 (~~the Incremental ~~Facilities) or in any other provision of any Loan Document, if the proceeds of any~~ Revolving Loans and Incremental ~~Facility are intended to~~ Revolving Credit Commitments shall be ~~applied to finance a Limited Condition Acquisition,~~ identical to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 New Revolving Credit Loans 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 transactionNew Revolving Credit Commitments. (e) Each ~~Incremental Facility~~ Joinder Agreement may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to ~~give~~ effect to the ~~provisions~~ provision 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.14. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Credit Agreement (Hca Inc/Tn), Credit Agreement (Hca Inc/Tn)

Incremental Facilities. (a) The ~~Borrower~~ Company may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 (A) the aggregate amount of all the Incremental Commitments ~~at any time~~ established hereunder shall not exceed ~~the Permitted Incremental Amount applicable to the~~ US$600,000,000 and (B) no Incremental Commitments ~~at such time less~~ may be established until after the ~~aggregate amount~~ earlier of ~~Incremental Equivalent Indebtedness incurred pursuant to clause~~ (wx) of the ~~definition of “Permitted Debt”~~Delayed Draw Term Funding Date and (y) the Delayed Draw Term Commitment Termination Date. Each such notice shall specify (i1) the date on which the ~~Borrower~~ 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 ~~ten (10)~~ 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 (ii2) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the ~~Borrower~~ Company proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing 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 ~~the~~ any Incremental ~~Commitments~~ Revolving Commitment and the ~~Incremental~~ Loans and other extensions of credit to be made thereunder shall be ~~set forth in an Incremental Facility Agreement; provided that~~identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, ~~in any event, (i) if the Weighted Average Yield applicable to~~ and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and conditions of any Incremental Term Loans ~~issued on or prior to~~ shall be such as the ~~date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum~~ Company and the applicable ~~Weighted Average Yield payable pursuant to~~ Incremental Term Lenders shall agree upon; provided that (i) the ~~terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B~~ Incremental Term Loans shall ~~automatically~~ be ~~increased~~ extensions of credit to ~~a level such~~ the Company that are guaranteed only by the ~~Weighted Average Yield~~ Subsidiary Guarantors, (ii) the Incremental Term Loans shall 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 ~~Tranche B~~ 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 ~~is 0.50% per annum below~~ shall be outstanding immediately after giving effect to the ~~Weighted Average Yield~~ 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 ~~(other than a shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either~~ shall be ~~automatically converted into or required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter~~ no earlier than the ~~then-remaining Weighted Average Yield~~ latest Maturity Date of ~~the Tranche B Term Loans); provided, that, if~~ any Incremental Term Loans or Incremental Revolving Loans, 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 such 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (iiB) the weighted average life to maturity of ~~any~~ such Incremental Term Loans shall be no shorter than the longest remaining weighted average life to maturity of ~~the Tranche B~~ any such Class of Term Loans and (~~without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii~~C) ~~no Incremental Maturity Date of any~~ such Incremental Term ~~Facility~~ Loans shall not be ~~earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which,~~ subject to ~~customary~~ any mandatory prepayment provisions. Any Incremental Term Commitments established pursuant to a single Incremental Facility Agreement that have identical terms and conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~made thereunder, ~~no consent~~ shall be ~~required from the Administrative Agent~~ designated as a separate “Class” of Commitments or ~~any~~ Loans for all purposes of ~~the Lenders to the extent~~ this Agreement; provided 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,~~ that have identical terms 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 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 ~~a later maturity date than~~ such ~~Class~~outstanding “term” Loans. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the ~~Parent, the Borrower~~Company, each Incremental Lender providing such Incremental Commitments and the Administrative ~~Agent~~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) ~~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~~ any 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 of the Loan Parties set forth in ~~Article III and in~~ the ~~other~~ 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,~~ case on and as of such ~~date~~date of effectiveness, except in the case of any such representation ~~and~~ or warranty that expressly relates to a prior date, in which case such representation ~~and~~ or warranty shall be so true and correct ~~in all material respects~~ on and as of such prior date, and (iii) ~~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 Commitments on a pro forma basis and (iv) the Borrower Company shall have ~~delivered or caused to have been~~ 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 Agent in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in the opinion of the Administrative ~~Agent~~Agent and the Company, to give effect to the provisions of this Section, ~~including, without limitation,~~ including 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 to treat the ~~reasonable opinion of the Administrative Agent~~ Incremental Term Commitments and the ~~Borrower in connection with the establishment of such~~ Incremental Term Loans as a new tranches or sub-tranches, including any amendments that are not adverse to the interests 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~~Commitments and Loans hereunder (including for purposes of voting). (fd) 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. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms~~ Documents and ~~conditions, and~~ (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a “Series”)~~ provided herein. For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments and Incremental Loans for~~ Revolving Commitment, the Applicable Percentages of all ~~purposes of this Agreement~~the Revolving Lenders shall automatically be adjusted to give effect thereto. (ge) 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 and in the applicable currency 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 amount of each Resulting Revolving Borrowing (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 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 ~~Series~~ Class shall make a ~~loan~~ Loan to the ~~Borrower~~ Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~Borrower~~ Company referred to in paragraph (a) of this Section ~~2.21(a) (Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders 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 Lead Borrower may ~~on one~~ at any time or ~~more occasions~~ from time to time after the ~~Closing~~ Effective Date, by ~~written~~ notice to the Administrative Agent, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii)~~ request one or more ~~new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new~~ additional tranches of term loans (~~each~~which may take the form of an increase in the principal amount of any existing tranche of Term A-1 Loans (but not, ~~an “Incremental Term Facility”;~~ for the ~~commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitments~~avoidance of doubt, the ~~“Incremental Commitments”;~~ Term A-2 Loans)) (the ~~loans made pursuant to such commitments,~~ “Incremental Term Loans”) or increases in the aggregate amount of Revolving Commitments (each such increase a “Incremental Revolving Commitment”; ~~and the~~ Incremental Term ~~Facilities, together with the~~ Loans and Incremental Revolving ~~Commitment Increases and the Term Loan Increases,~~ Commitments are collectively referred to herein as the “Incremental Facilities”); provided that, no Incremental Term Loans may be made and no Incremental Revolving Commitments may become effective unless, (i) on the proposed date of the making of such Incremental Term Loans or the effectiveness of such Incremental Revolving Commitments, as applicable, (A) the conditions set forth in clauses (a) and (b) of Section 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate on behalf of the Lead Borrower to that effect dated such date and executed by a Financial Officer of the Lead Borrower and (B) the Lead Borrower shall be in compliance (on a pro forma basis, assuming full drawing under the applicable Incremental Facility) with the covenants contained in Section 5.13; provided that, in the case of any Incremental Facilities the proceeds of which are to be used to finance a Limited Condition Transaction permitted hereunder, to the extent agreed by the Lenders providing such Incremental Facilities, (I) the representations and warranties the accuracy of which are a condition to the funding of such Incremental Facilities may be limited to (1) customary specified representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Facilities), and (2) those representations of the acquired company in the applicable acquisition agreement that are material to the interests of the lenders under the Incremental Facilities and if breached would give the Lead Borrower the right to terminate or refuse to close under the applicable acquisition agreement and (II) (x) at the time of the execution and delivery of the purchase agreement or other definitive documentation related to such Limited Condition Transaction, no Default or Event of Default shall have occurred and be continuing or shall occur as a result thereof and (y) on the date of the effectiveness and the making of any such Incremental Facilities, no Specified Default shall have occurred and be continuing or shall occur as a result thereof, and (ii) the Administrative Agent shall have received 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 shall be in an integral multiple of $25,000,000 and be in an aggregate principal amount of that is not less than $25,000,000, provided that such amount may be less than the applicable minimum amount if such amount represents 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”remaining availability hereunder as set forth above. Each such notice shall specify (iA) the date on which the Lead Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loans, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (iiB) the amount of the Incremental Revolving Commitments ~~being requested (it being agreed that (x) any Lender approached to provide any~~ or Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental CommitmentTerm Loans, as ~~the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender~~applicable, ~~if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent)~~being requested. (b) ~~The~~ No Subsidiary shall be a borrower or a guarantor under any Incremental Facility unless such Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations. Each Incremental Revolving Commitment shall be on terms and ~~conditions of~~ pursuant to documentation applicable to the existing Revolving Commitments. The Incremental ~~Commitments and the Incremental~~ Term Loans ~~to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event,~~ (i) if made as an increase in the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms principal amount of this Agreement, as amended through the date of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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~~ tranche 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), but only~~ have terms identical to ~~the extent an increase in the Term SOFR or Alternate Base Rate floor~~ those applicable to ~~the existing~~ such Term ~~Loans would cause an increase in the interest rate then in effect thereunder~~Loans, 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 such differential between interest rate floors; (ii) ~~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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 rank pari passu 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~~iii) 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~~ Latest Maturity Date (but may have amortization and/or customary prepayments prior to such date); provided that the foregoing requirement shall not apply to the extent such Debt constitutes a customary bridge facility, so long as the long-term Debt into which such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (iii) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges, (iv) except as set forth above, shall be treated substantially the same as (and in any event, no more favorably than) the Term A-1 Loans and (v) will accrue interest at rates determined by the Lead Borrower and the lenders providing such Incremental Term Loans. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Lender holding such Incremental Revolving Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Lender holding such Incremental Revolving Commitment, and each such Lender holding such Incremental Revolving Commitment shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations Swingline Loans outstanding at 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 Swingline Loans will be held by all the ~~time of incurrence~~ Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Commitments; (C~~Commitment. The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Lead Borrower referred to in Section 2.20(a) ~~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 effectiveness of any Incremental ~~Revolving Commitments and (3) repayment made~~ Facility, in ~~connection with a permanent repayment and termination~~ each case advising the Lenders of ~~commitments (subject to clause (D) below))~~ the details thereof and, in the case of ~~Loans with respect to~~ effectiveness of any 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~~ of the ~~Borrower shall~~ Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be ~~permitted~~ made pursuant 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~~this Section 2.20(a). (c) ~~The~~ Incremental ~~Commitments~~ Facilities may be provided by any existing Lender (provided that no existing Lender shall ~~be effected pursuant~~ have (x) an obligation to ~~one~~ provide all or ~~more~~ any portion of any Incremental Facility ~~Agreements executed and delivered~~ unless it so agrees in writing as provided in this Section 2.20 or (y) the right to provide all or any portion of any Incremental Facility) or by ~~the Parent~~other bank, financial institution or other institutional lender or investor (other than an Ineligible Institution) (any such other bank, financial institution or other institutional lender or investor being called an “Additional Lender”); provided that, the ~~Borrower, each Incremental~~ Administrative Agent and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Lender or Additional Lender providing such Incremental Facility, to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement pursuant to an amendment or amendment and restatement (each, an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent~~; provided that no~~ . The 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 Amendment may, without the consent of any ~~Lender~~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 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 ~~Borrower in connection with~~ Lead Borrower, to effect the ~~establishment~~ provisions of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the this Section. The effectiveness ~~of an Incremental Commitment~~ of any Incremental ~~Lender, such Incremental Lender~~ Amendment shall be ~~deemed~~ subject to ~~be a “Lender” (and a Lender in respect~~ the satisfaction on the date thereof of ~~Commitments and Loans~~ each of the ~~applicable Class) hereunder,~~ conditions set forth in Section 4.02 and ~~henceforth~~ such other conditions as the parties thereto shall ~~be entitled to all~~ agree. The Lead Borrower will use the ~~rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans~~ proceeds of the ~~applicable Class) hereunder and shall be bound~~ Incremental Facilities for any purpose not prohibited 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 Commitments and Incremental Loans for all purposes of this Agreement. (gd) ~~Subject~~ This Section 2.20 shall supersede any provisions in Section 2.18(d) or Section 9.02 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 Agreementcontrary. ~~(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 2.21(a) (Incrementa~~

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower ~~may on one or more occasions after the Closing Date~~may, by written notice to the Administrative Agent and each Lender (with a copy to the Collateral Agent), request~~: (i)~~ , prior to the last day of the Revolving Period, an increase ~~in any Revolving~~ to the existing Commitments (~~each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as~~ any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitmentssuch increase, the “~~Incremental~~ New Commitments”~~; the loans made pursuant~~ ) by an amount not to ~~such commitments, “Incremental Term Loans”;~~ exceed $400,000,000 (and the ~~Incremental Term Facilities, together with~~ sum of the ~~Revolving Commitment Increases~~ existing Commitments and ~~the Term Loan Increases, the “Incremental Facilities”); provided that the aggregate amount of all the Incremental~~ any New Commitments ~~at any time~~ shall not exceed $1,000,000,000 in 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”aggregate). Each such notice shall specify (i) the amount of the New Commitment, (ii) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the ~~Incremental~~ New Commitments shall be ~~effective~~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 required 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 (E) the effectiveness of any allocation of New Commitments to a ~~date not less than ten~~ non-Lender shall be subject to (10i) ~~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~~ prior written consent of the Administrative Agent and (ii) the ~~amount~~ Collateral Agent’s receipt of all documentation necessary for purposes of compliance with the ~~Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect~~ applicable “know your customer” requirements under the Patriot Act or decline, in its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent)other applicable Anti-Money Laundering Laws. (b) ~~The~~ On any Increased Amount Date on which New Commitments are effected, subject to the satisfaction of the foregoing terms and ~~conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that~~conditions, ~~in any event,~~ (i) if each of the ~~Weighted Average Yield applicable~~ existing Lenders shall assign to ~~any Incremental Term Loans issued~~ 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 ~~or prior~~ 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 ~~date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant~~ addition of such New Commitments to the ~~terms of this Agreement~~Commitments, ~~as amended through the date of such calculation~~(ii) each New Commitment shall be deemed, ~~with respect to Tranche B Term Loans~~for all purposes, ~~then the Applicable Margin then in effect~~ a Commitment and each Advance made thereunder (a “New Advance”) shall be deemed, for ~~Tranche B Term Loans~~ all purposes, an Advance and (iii) each new Lender shall ~~automatically be increased to~~ become a ~~level such that the Weighted Average Yield~~ Lender 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 all matters relating 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~~ Administrative Agent shall ~~be effected pursuant to one or more Incremental Facility Agreements executed and delivered by~~ notify the ~~Parent,~~ Lenders promptly upon receipt of the Borrower, ’s notice of each ~~Incremental Lender providing such Incremental~~ Increased Amount Date and in respect thereof (i) the New Commitments and the ~~Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) except as otherwise agreed by the~~ Increasing 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 each notice to any Lender, the ~~representations and warranties qualified as to materiality,~~ respective interests in ~~all respects and (B) otherwise, in all material respects~~such ▇▇▇▇▇▇’s Advances, 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 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 subject to the 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 have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested assignments contemplated by ~~the Administrative Agent in connection with any such transaction~~this Section 2.20. (d) ~~Notwithstanding the foregoing~~ The terms and provisions of ~~this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if~~ the ~~proceeds of any Incremental Facility are intended to~~ New Advances shall be ~~applied to finance a Limited Condition Acquisition,~~ identical to the ~~extent agreed by the applicable Lenders providing such Incremental Commitments~~Advances. Each Assignment and Acceptance or each Joinder Supplement, the conditions precedent to the Borrower’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 Acquisitionas applicable, 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~other Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Transaction Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, and consented to ~~give~~ by the Borrower (such consent not to be unreasonably withheld), to 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests Section 2.20. The effectiveness 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender New Commitments 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. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and conditioned upon any Incremental Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental 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~~ amendment being entered into by the ~~Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) (Incrementa~~parties hereto.

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 Borrower ~~may~~ may, at any time, on one or more occasions ~~after the Closing Date, by written notice~~ pursuant to ~~the Administrative Agent, request: (i)~~ an ~~increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “~~Incremental ~~Revolving Commitments”), (ii)~~ Facility Amendment add one or more new Classes of term ~~loan commitments~~ facilities and/or increase the principal amount of the ~~same~~ Term Loans of any existing Class as by requesting new commitments to provide such Term Loans (any ~~outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one~~ such new Class or ~~more new tranches of term loans (each~~increase, an “Incremental ~~Term~~ Facility~~”; the commitments in respect thereof “Incremental Term Commitments~~” and ~~together with the Incremental Revolving Commitments, the “Incremental Commitments”; the~~ any loans made pursuant to ~~such commitments~~an Incremental Facility, “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 that: (i) ~~the date on which the Borrower proposes~~ no Incremental Commitment in respect of any Incremental Facility may be in an amount that ~~the Incremental Commitments shall be effective, which shall be a date not~~ is less than ~~ten (10) Business Days~~ $5,000,000 (or such ~~shorter period as may be agreed~~ lesser amount to ~~by the Administrative Agent) after the date on~~ which ~~such notice is delivered to~~ the Administrative Agent ~~and~~ may reasonably agree); (ii) except as the ~~amount~~ Borrower and any Lender may separately agree, 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 ~~the Incremental Commitments being requested~~ such Lender (it being agreed that ~~(x)~~ the Borrower shall not be obligated to offer the opportunity to any Lender ~~approached~~ to ~~provide~~ participate in any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term LoansFacility); (iii) no Incremental ~~Maturity Date~~ Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term ~~Facility shall~~ Loan; (iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be ~~earlier~~ materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the ~~initial Tranche B Term Maturity Date~~ Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing 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 Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); (v) solely with respect to any Incremental Term Loans that are pari passu with the Initial Term Loans in right of payment and with respect to security and that are incurred following the Amendment No. 1 Effective Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans (with the Effective Yield of all Initial Term Loans calculated based on the Effective Yield of the Additional Initial Term Loans) unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Initial Term Loan due to the application or imposition of an ~~earlier~~ Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO Rate floor applicable to such Initial Term Loan; (vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date ~~for customary bridge financings, which, subject~~ with respect to ~~customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which~~ any Incremental Term Loans shall be no earlier than the ~~initial Tranche B~~ Initial Term Loan Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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) subject to the ~~proceeds~~ Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity 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 no shorter than the ~~latest~~ remaining Weighted Average Life to Maturity ~~Date~~ of ~~any Revolving~~ the Initial Term Loans ~~outstanding at~~ on the ~~time~~ date of incurrence of such Incremental ~~Revolving Commitments~~Facility (without giving effect to any prepayments of the Initial Term Loans); (Cviii) 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[reserved]; (Dix) 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa[reserved];

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)

Incremental Facilities. ~~(a) The Borrower may on~~ On one or more occasions at any time after the Closing Date, the Borrowers may by written notice to the Administrative ~~Agent, request:~~ Agent elect to request (iA) an increase ~~in any~~ to the existing Revolving Commitments (~~each~~any such increase, ~~a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof,~~ “Incremental Revolving Commitments”), ) and/or (iiB) the establishment of one or more new term loan commitments of (the ~~same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an~~ “Incremental Term ~~Facility~~Loan Commitments”~~; 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~~ in an aggregate amount ~~of all the Incremental Commitments at any time shall~~ not to 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”$750,000,000. Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the ~~Borrower proposes~~ Revolving Borrowers or the Term Loan Borrowers, as applicable, propose that ~~the~~ such Incremental Commitments shall be effective, which shall be a date not less than ~~ten~~ five (105) Business Days ~~(or such shorter period as may be agreed to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent ~~and (ii)~~ and/or its Affiliates shall use commercially reasonable efforts, with the ~~amount~~ 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 being requested (it being agreed~~ 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 ~~any~~ all or a portion of the Incremental ~~Commitment~~ 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 ~~(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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must allocated shall be ~~an Eligible Assignee and must be reasonably acceptable~~ subject to the ~~Administrative Agent). (b) The terms and conditions~~ approval of the ~~Incremental Commitments and~~ Revolving Borrowers or the ~~Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental~~ Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving LoansLoan Borrowers, as applicable, ~~include a~~ 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 ~~SOFR or Alternate Base Rate floor that~~ Loan Lender is ~~greater than the Term SOFR or Alternate Base Rate floor applicable to~~ an existing Lender. The terms and provisions of any ~~existing Class of Term Loans, such differential between interest rate floors~~ Incremental Revolving Commitments shall be ~~included in the calculation of Weighted Average Yield for purposes of this clause (i), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable~~ identical to the existing Revolving Commitments. The terms and provisions of any Incremental Term ~~Loans would cause an increase in the interest rate then in effect thereunder,~~ Loan Commitments 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 such differential between interest rate floors; (ii) the weighted average life to maturity of any Incremental Term Loans shall ~~be no shorter than~~ (a) provide that 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 Tranche B Term Loans); (iii) no Incremental Maturity Date date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which Loan that is a separate tranche shall be no earlier than the ~~initial Tranche B~~ Term Loan Maturity ~~Date);~~ Date and shall not have any scheduled amortization payments, (ivb) 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 elect lesser payments and (c) otherwise be identical to the 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) ~~subject~~ after giving pro forma effect to ~~clauses~~ such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall exist and (ii) ~~and (iii) above~~as of the last day of the most recent month for which financial statements have been delivered pursuant to Section 5.01, the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ Borrowers would have been in compliance with the ~~amortization schedule applicable~~ Financial Covenants (after giving effect to any ~~Incremental Facility shall be determined by~~ increase to the ~~Borrower and the Incremental Lenders and~~ maximum 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) ~~all other terms of any Incremental Term Facility, if not consistent with~~ the ~~terms of~~ representations and warranties made or deemed made by the ~~Tranche B Term Facility~~ Borrowers in any ~~material respect,~~ Loan Document shall be ~~reasonably satisfactory to the Administrative Agent (except for covenants~~ true and ~~terms that apply solely to any period after the latest Maturity Date that is~~ correct in ~~effect~~ all material respects 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 Commitments except to the extent that such ~~financial maintenance covenant is also added~~ 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 ~~benefit~~ Loan Documents; and (z) the Administrative Agent shall have received each of ~~any Tranche B Term Loans remaining outstanding after~~ the ~~effectiveness~~ following, in form 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 ~~Facility Agreement~~Commitments; 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 (viii) 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 ~~Loans may participate on~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender shall make a ~~pro rata basis or less than pro rata basis~~ Loan to the applicable Term Loan Borrower (~~but not on a greater than pro rata basis~~an “Incremental Term Loan”) in ~~any voluntary or mandatory prepayments of the~~ an amount equal to its Incremental Term ~~Loans~~Loan Commitment, ~~as specified in the applicable~~ and (ii) each 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,~~ Term Loan Lender shall become a Lender hereunder 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 Term Loan Commitment and the ~~related transactions~~ 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 ~~payment of fees and expenses with~~ in 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~~ thereof (~~viii~~y) the Incremental Revolving Commitments and the Incremental Revolving ~~Loans shall be identical to~~ Loan Lenders or the ~~Revolving~~ Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable, and (z) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, ~~other than as to their Maturity Date and as set forth~~ in ~~this Section 2.21 (Incremental Facilities); provided that, notwithstanding anything~~ each case subject to the ~~contrary in~~ assignments contemplated by 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 Section. The upfront fees ~~at different rates on Incremental Revolving Commitments (and related outstandings), (2) repayments required upon the maturity date of~~ payable to the Incremental Revolving ~~Commitments~~ Loan Lenders and/or Incremental Term Loan Lenders shall be determined by the Revolving Borrowers or the Term Loan Borrowers, as applicable, and ~~(3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (D) below)) of Loans with respect to~~ the applicable Incremental Revolving ~~Commitments shall be made on a pro rata basis with all other Revolving Commitments on the~~ Loan Lenders and/or 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) Term Loan Lenders. The Incremental Commitments shall be effected pursuant to one or more ~~Incremental Facility Agreements~~ Additional Credit Extension Amendments executed and delivered by the ~~Parent~~Revolving Borrowers or the Term Loan Borrowers, as applicable, the ~~Borrower~~Incremental Revolving Loan Lender or Incremental Term Loan Lender, ~~each Incremental Lender providing such Incremental Commitments~~ as applicable, 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~ recorded in the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) Register. Each ~~Incremental Facility Agreement~~ Additional Credit Extension Amendment may, without the consent of any ~~Lender~~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 ~~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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.04. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Cooper Companies Inc)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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~~ established hereunder shall not exceed (A) $50,000,000 and (B) such greater amount that will not result in the ~~Permitted~~ First Lien Secured Leverage Ratio, determined on a Pro Forma Basis giving effect to such Incremental ~~Amount applicable to~~ Facility (assuming that all Revolving Commitments, including any Incremental Revolving Commitments, have been fully funded with Revolving Loans and excluding in the ~~Incremental Commitments at such time less the aggregate amount~~ calculation of ~~Incremental Equivalent Indebtedness incurred pursuant to clause (w)~~ Available Domestic Cash and Available Foreign Cash for purposes of the ~~definition~~ First Lien Secured Leverage Ratio the cash proceeds of ~~“Permitted Debt”~~the Borrowings under any such Incremental Revolving Facility or Incremental Term Facility, but not excluding the use of such proceeds) exceeding 3.75 to 1.00. Each such notice shall specify (iA) 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 ~~ten (10)~~ 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 (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender). (b) The terms of any Incremental Revolving Commitments and ~~conditions~~ Revolving 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 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 maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (ii) there shall be no mandatory reduction of any Incremental Revolving Commitments prior to the Revolving Maturity Date and (iii) any upfront fees applicable to any Incremental Revolving Facility and Incremental Revolving Commitments and Incremental Revolving Loans shall be as determined by the 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 be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the Term Commitments and the Term Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield applicable~~ 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 ~~issued on or prior to the date that is twelve (12) months after the Closing Date~~ exceeds by more than 0.50% per annum the ~~applicable Weighted Average Yield payable pursuant~~ 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 ~~terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B~~ Term Loans, then the Applicable ~~Margin~~ Rate then in effect for ~~Tranche B~~ the Term Loans shall automatically be ~~increased to a level~~ adjusted such that the ~~Weighted Average Yield with respect~~ all-in yield relating to the ~~Tranche B~~ Term Loans is equal to the all-in yield relating to the Incremental Term Loans minus 0.50~~% per annum below~~ %, (ii) the ~~Weighted Average Yield with respect~~ upfront fees, interest rates and amortization schedule applicable 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term ~~Loans or~~ Facility and Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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~~ determined by the ~~extent of such differential between interest rate floors;~~ Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (iiiii) 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 B Term~~ Terms Loans and (~~without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii~~iv) no Incremental Term Loan Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date~~); (iv) (x) subject~~ . Any Incremental Term Facilities established pursuant to ~~clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any~~ an Incremental Facility ~~shall be determined by the Borrower~~ Agreement that have identical terms and ~~the Incremental Lenders~~ conditions, and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ made thereunder, shall be designated as a separate series (each a “Series”) of 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 Commitments and 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~~ for all purposes 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 . Notwithstanding anything to the contrary ~~in this Section 2.21 (~~herein, each Incremental ~~Facilities) or otherwise: (A) any such Incremental Revolving Commitments or Incremental Revolving Loans~~ Facility and all extensions of credit thereunder shall ~~rank pari~~ be secured by the Collateral on a pan passu ~~in right of payment and of security~~ basis 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 ClassLoan Document Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by ~~the Parent~~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) ~~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 and issuance of Letters of Credit thereunder to be made on such ~~date~~date (provided 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) ~~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 of each Loan Party 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~~correct, in all material respects, in each ~~case,~~ 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~~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 ~~other extensions~~ excluding in the calculation of ~~credit thereunder to be made on~~ Available Domestic Cash and Available Foreign Cash for purposes of the ~~date~~ covenant calculations the cash proceeds of ~~effectiveness thereof~~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 ~~Financial Covenants set forth~~ covenants contained in ~~Section~~ Sections 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 Commitments on a pro forma basis~~ 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 or caused to have been~~ delivered to the Administrative Agent such ~~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~~. (d) Notwithstanding the foregoing provisions~~ , including a certificate of ~~this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance~~ a ~~Limited Condition Acquisition,~~ Financial Officer to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 effect set forth in ~~clause~~ clauses (~~c)(i) and~~ i), (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) ~~the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions~~above, ~~board resolutions, secretary’s certificates, officer’s certificates and other documents as shall~~ together with reasonably ~~be requested by the Administrative Agent in connection~~ detailed calculations demonstrating compliance with ~~any such transaction.~~ clause (eiii) 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series~~Revolving Commitment”) . For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Revolving Lenders, shall automatically be adjusted to give effect thereto. (ge) 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. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e). (~~Incrementa~~h) This Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 2 contracts

Sources: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)

Incremental Facilities. (a) ~~The Borrower may on one or more occasions after~~ After the ~~Closing Date~~Second Amendment Effective Date and 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 ~~the~~ Administrative Agent, ~~request:~~ may request (i) ~~an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition establishment of one or more ~~new~~ additional tranches of term loans (~~each~~the commitments thereto, an the “Incremental Term ~~Facility~~Loan Commitments”; ) and/or (ii) increases in the ~~commitments in respect thereof~~ Revolving Commitments (the “Incremental ~~Term~~ Revolving Commitments” ~~and~~ and, together with the Incremental ~~Revolving~~ Term Loan Commitments, the “Incremental Loan 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 (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 ~~all the Incremental~~ outstanding Term Loans and Revolving 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”$1,500,000,000. Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective, which shall be a date not less than ~~ten (10)~~ 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~~ 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) ~~the amount~~ any entity providing all or a portion of the Incremental Loan Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then other than a Lender, an ~~Affiliate~~ affiliate of a Lender or an Approved ~~Fund must be an Eligible Assignee and must~~ Fund, shall be reasonably acceptable to the Administrative ~~Agent~~Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed). (b) ~~The terms and conditions~~ In each case, such Incremental Loan Commitments shall become effective as of the ~~Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement;~~ applicable Increased Amount Date, provided ~~that, in any event,~~ that (i) ~~if the Weighted Average Yield applicable to any Incremental Term Loans issued~~ no Default or Event of Default shall exist on such Increased Amount Date before or ~~prior to the date that is twelve (12) months~~ after the Closing Date 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, then the Applicable Margin then in giving 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~~ Loan Commitments, (~~other than a shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either~~ ii) the Borrower shall 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 then-remaining Weighted Average Yield~~ in compliance with Section 7.1 as of the ~~Tranche B Term Loans); provided~~most recently ended fiscal quarter after giving effect to such Incremental Loan Commitments, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (iiiii) the weighted average life to maturity of any Incremental Term ~~Loans~~ Loan shall be ~~no shorter~~ greater than or equal to the then-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 Tranche B~~ Extended Term Loans); , (~~iii~~iv) ~~no Incremental Maturity Date~~ the interest rate margin in respect of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 Revolving Loans that is in effect on the ~~effective~~ Increased Amount Date (giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to 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 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, (v) unless the final maturity date of such Incremental ~~Facility Agreement) (it being understood that to~~ Term Loans is at least one year later than the ~~extent any financial maintenance covenant is added for~~ final maturity date of the ~~benefit~~ Extended Term Loans, the interest rate margin in respect of ~~any~~ such Incremental Term Loans (giving effect to OID or ~~any~~ upfront fees paid to all of the Incremental Term ~~Commitments~~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, ~~no consent shall be required from~~ and (y) the ~~Administrative Agent or any~~ 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 ~~extent that~~ sum of such ~~financial maintenance covenant is also added~~ Applicable Margin and such fees, such Applicable Margin for the ~~benefit of any Tranche B~~ Extended Term Loans ~~remaining outstanding after~~ shall be increased so that the ~~effectiveness~~ interest rate margin in respect of such Incremental ~~Facility Agreement);~~ Term Loan (vgiving effect to any OID issued or upfront fees paid to all of the Incremental Term Lenders in connection therewith) ~~any~~ 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 ~~may participate on a pro rata basis or less~~ is at least one year later than ~~pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments~~ the final maturity date of the Extended Term Loans, ~~as specified~~ 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 ~~applicable Incremental Facility Agreement;~~ manner set forth above)) shall not exceed by more than 25 bps the sum of (vix) ~~any Incremental Commitments~~ the Applicable Margin for the Extended Term Loans, and ~~Incremental Loans shall, as elected by~~ (y) the ~~Borrower, be equal or junior in right of payment with any remaining portion~~ upfront fees paid to all of the ~~Facilities and~~Lenders in respect of their Extended Term Loans, ~~with~~ 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 ~~security with~~ any ~~remaining portion~~ OID issued or upfront fees paid to all of the ~~Facilities, pari passu, junior or unsecured and shall not be secured by any assets other~~ Incremental Term Lenders in connection therewith) is no greater than the ~~Collateral securing~~ sum of (x) the ~~Facilities or guaranteed by any Person that does not guarantee~~ Applicable Margin for the ~~Facilities~~ Extended Term Loans, (~~provided that any such Incremental Commitments or Incremental~~ y) the upfront fees paid to all of the Lenders in respect of their Extended Term 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~~and (z) 25 bps, ~~as applicable);~~ and (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 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 ~~Facility Agreements~~ Commitment Agreement”) executed and delivered by the ~~Parent~~Borrower, the ~~Borrower, each~~ applicable Incremental Term Loan Lender ~~providing such Incremental Commitments~~ and the Administrative ~~Agent; provided that no~~ 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. (c) 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 ~~become effective unless~~ assign to each Person with an Incremental Revolving Commitment (ieach, an “Incremental Revolving Lender”) ~~except as otherwise agreed by~~ and each of the Incremental Revolving Lenders shall purchase from each of the Lenders ~~providing~~ with Revolving Commitments, at the ~~relevant Incremental Facility~~ principal amount thereof, such interests in ~~connection with any Limited Condition Acquisition (which~~ the Revolving Loans outstanding on such Increased Amount Date as shall be ~~governed by clause (d) below)~~necessary in order that, ~~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 all such ~~Incremental Commitments~~ assignments 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 thereofpurchases, the ~~representations~~ Revolving Loans will be held by existing Revolving Lenders and ~~warranties set forth~~ Incremental Revolving Lenders ratably 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) accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments ~~and~~ to the ~~making of~~ Revolving Commitments, (b) each Incremental ~~Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower~~ Revolving Commitment shall be ~~in compliance with the Financial Covenants set forth in Section 6.12~~ deemed for all purposes a Revolving Commitment and each Loan made thereunder (~~Financial Covenants~~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 ~~Fiscal Quarter~~ Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the ~~Borrower most recently ended as of the date of effectiveness of such~~ Incremental Revolving Loans and Incremental Revolving Commitments ~~on a pro forma basis and (iv) the Borrower~~ shall ~~have delivered or caused to have been delivered~~ be identical to the ~~Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates~~ Revolving Loans and ~~other documents as shall reasonably be requested by~~ the ~~Administrative Agent in connection with any such transaction~~Revolving Commitments. (d) ~~Notwithstanding~~ On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the foregoing ~~provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document~~terms and conditions, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: (i) each Person with an Incremental Term Loan Commitment (xeach, an “Incremental Term Loan Lender”) on shall make a Loan to the ~~date of execution of the definitive documentation with respect~~ Borrower (an “Incremental Term Loan”) in an amount equal to ~~such Limited Condition Acquisition~~its Incremental Term Loan Commitment, ~~all the requirements set forth in clause (c)(i)~~ and (ii) ~~above~~ each Incremental Term Loan Lender 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 become a condition to funding such Incremental Loans shall be the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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) Lender hereunder with respect to the ~~Fiscal Quarter of~~ Incremental Term Loan Commitment and the ~~Borrower most recently ended as of the date of effectiveness of such~~ Incremental Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 transactionTerm Loans made pursuant thereto. (e) Each Incremental ~~Facility~~ Commitment Agreement may, without the consent of any ~~Lender~~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 ~~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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.23. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Credit Agreement (Avis Budget Group, Inc.), Credit Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) ~~The Borrower may on~~ On one or more occasions at any time on or after the ~~Closing~~ Effective Date, the Borrower may by written notice to the Administrative ~~Agent, request:~~ Agent elect to request (iA) an increase ~~in any~~ to the existing aggregate Revolving Commitments (~~each~~each such increase, a “Revolving ~~Commitment~~ Facility Increase~~” and~~ ”) and/or (B) an increase to the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments~~ size of the ~~same Class as any outstanding~~ existing Term Loan ~~(each, a “Term Loan Increase”), or (iii)~~ Facility and/or the ~~addition~~ establishment of one or more ~~new tranches of~~ incremental term ~~loans~~ loan facilities to the Term Loan Facility (~~each~~whether or not a separate tranche, an “Incremental Term ~~Facility”~~Loan; ~~the commitments in respect thereof~~ each Incremental Term Loan is referred to individually as an “Incremental Term ~~Commitments~~Facility” and together with ~~the Incremental~~ any Revolving ~~Commitments~~Facility Increase, ~~the “Incremental Commitments”; the loans made pursuant~~ collectively referred to ~~such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the~~ as “Incremental Facilities”~~); provided~~ , and any such facility or commitment increase, individually, an “Incremental Facility”) such that the aggregate amount of the Facilities, together with all ~~the~~ such Incremental ~~Commitments~~ Facilities, does not exceed 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”$4,000,000,000. Each such notice shall specify ~~(i)~~ the date on which the Borrower proposes that ~~the~~ such Incremental ~~Commitments~~ Facilities shall be effective, which shall be a date not less than ~~ten~~ five (105) Business Days (or such ~~shorter period~~ lesser number of days as ~~may be agreed to by~~ the Administrative ~~Agent~~Agent shall agree) after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent, the Syndication Agent ~~and (ii)~~ and/or their respective Affiliates shall use commercially reasonable efforts, with the ~~amount~~ assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental ~~Commitments being requested (it being agreed~~ Facility; provided that (x) any Lender approached to provide all or a portion of any Incremental ~~Commitment~~ Facility may elect or decline, in its sole discretion, to ~~provide such~~ participate in an Incremental ~~Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment~~Facility, ~~as the case may be)~~ and (y) any Lender or other Person that ~~the Borrower proposes to become an Incremental Lender, if such Person~~ is ~~not then a Lender, an Affiliate of a Lender or an Approved Fund must be~~ an Eligible Assignee ~~and must be reasonably acceptable~~ to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in whom any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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 portion of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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~~ allocated (each, an “Incremental ~~Lenders and (y) all other terms of any~~ Revolving Lender” or “Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 LoansLoan Lender”, as ~~specified in the applicable Incremental Facility Agreement; (vi~~applicable) 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 approval 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~~ Agent (~~i) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (which shall~~ such approval not to be ~~governed by clause (d) below~~unreasonably withheld or delayed), ~~no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof~~and, 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~~a Revolving Facility Increase, ~~in all respects and~~ each Issuing Bank (~~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~~ approvals shall not be true and correct in all material respects as of such prior date, (iii) 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisitionunreasonably withheld), to the extent ~~agreed~~ required by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~9.04(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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

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 ~~Borrower~~ Company may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments~~ in respect ~~thereof, “Incremental Revolving Commitments”),~~ of the Global Tranche Commitments and/or the US Tranche Commitments and/or (ii) ~~one or more new term loan commitments~~ the establishment of ~~the same Class as any outstanding~~ Incremental Term Loan ~~(each, a “Term Loan Increase”), or (iii) the addition of one or more 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 (iA) the date on which the ~~Borrower~~ 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative ~~Agent~~ Agent, and (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Loan Commitment and (y) any Person that the ~~Borrower~~ Company proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Banks and the Swingline 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 be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the Tranche A Term Loan Commitments and the Tranche A Term Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield applicable~~ interest rate margins with respect to any Incremental Term Loans ~~issued on or prior to~~ shall be as agreed by the ~~date that is twelve~~ Company and the lenders in respect thereof, (12ii) ~~months after~~ any Incremental Term Loan shall have terms, in the ~~Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement~~Company’s reasonable judgment, ~~as amended through the date~~ customary for a term loan of such ~~calculation~~type under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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~~ as agreed by the Company and the lenders in ~~the calculation of Weighted Average Yield for purposes of this clause (i)~~respect thereof, but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B A Terms Loans and Incremental Term Loans ~~(without giving effect to prior prepayments that would otherwise modify~~ with the longest remaining weighted average life to ~~maturity of the Tranche B Term Loans);~~ maturity, (~~iii~~iv) no Incremental Term Maturity Date ~~of any~~ with respect to Incremental Term ~~Facility~~ Loans shall be earlier than the ~~initial~~ Tranche B 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 ~~(other than an earlier maturity date for customary bridge financings, which, subject~~ in effect immediately prior to ~~customary conditions, would either be automatically converted into~~ the establishment of such Incremental Term Loans; provided further that any Incremental Term Loans may add additional covenants or ~~required~~ events of default not otherwise applicable to ~~be exchanged for permanent financing~~ the ~~stated maturity of which shall be no earlier~~ Tranche A Term Loans or covenants more restrictive than the ~~initial~~ covenants applicable to the Tranche B A Term Loans in each case prior to the Latest Maturity ~~Date~~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); , (ivvi) ~~(x) subject~~ to ~~clauses (ii) and (iii) above,~~ the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ extent the ~~amortization schedule~~ terms applicable to any Incremental ~~Facility shall be determined by the Borrower and the Incremental Lenders and (y) all other terms of any Incremental~~ Term ~~Facility, if not consistent~~ Loans are inconsistent with the terms of applicable to the Tranche B A Term ~~Facility~~ Loans (except, in ~~any material respect~~each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative ~~Agent~~ 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); (vvii) any Incremental Term Loans ~~may participate~~ shall have the same Guarantees as, shall rank pari passu with respect to the Liens 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~~ Collateral 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~~ Loans (except to ~~security with any remaining portion of~~ the ~~Facilities, pari passu, junior or unsecured and shall not be secured by any assets other than~~ extent that the ~~Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any~~ related Incremental Facility Agreement provides for such Incremental ~~Commitments or~~ Term Loans to be treated less favorably, in which case such Incremental Term 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 a customary intercreditor agreement in form and ~~the related transactions and payment of fees and expenses with respect thereto, to make Restricted Payments and to refinance existing Indebtedness~~ substance reasonably satisfactory 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 outstandingsAdministrative Agent), (~~2) repayments required upon~~ viii), in the ~~maturity date~~ case of ~~the~~ Incremental ~~Revolving Commitments and~~ Term Loans marketed as term “B” loans to institutional investors (~~3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (D) below~~“Incremental Term B Loans”)~~) of Loans~~ , any Incremental Term Loan Amendment with respect to Incremental ~~Revolving~~ 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 Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be ~~made on~~ designated as a ~~pro rata basis with~~ separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all ~~other~~ purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be more than five (5) maturity dates in respect of the Credit Facilities (including any Replacement Term Loans or Replacement 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 ClassFacilities). (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the ~~Parent, the Borrower~~Company, 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 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) ~~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 and issuance of Letters of Credit 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 of each Loan Party 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 (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) on and as of such ~~prior~~ date, (iii) 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~~thereof (and assuming, in 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds case of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Revolving 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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, that such Incremental Revolving Commitments are fully drawn), the ~~Borrower~~ Company shall be in pro forma compliance with the ~~Financial Covenants~~ 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 ~~6.12~~ 2.16 in connection with such Incremental Commitments and the related transactions under this Section, and (~~Financial Covenants~~v) ~~with~~ the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect ~~to the Fiscal Quarter~~ of ~~the Borrower most recently ended~~ a Limited Conditionality Acquisition shall become effective unless (1) as of the date of ~~effectiveness~~ 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 ~~Commitments~~ Term 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~~ 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 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 (~~iii~~5) as of the ~~Borrower shall have delivered or caused to have been delivered to~~ date of execution of the ~~Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested~~ related Limited Conditionality Acquisition Agreement by the ~~Administrative Agent~~ parties thereto, the Company shall be in ~~connection~~ pro forma compliance with ~~any such transaction. (e)~~ 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 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, ~~any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation,~~ amendments to ~~the Mortgages~~ address equity and ~~datedown endorsements~~ cash patronage provisions reasonably requested by any farm credit bank and reasonably acceptable to ~~the title policies) 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, including any amendments that are not adverse to the interests 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 thereunderCompany. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series”)~~ Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Revolving Lenders, shall automatically be adjusted to give effect thereto. (ge) 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 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 of each applicable Class 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 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 2.21(a) (IncrementaIncrem

Appears in 2 contracts

Sources: Credit Agreement (Scotts Miracle-Gro Co), Credit Agreement (Scotts Miracle-Gro Co)

Incremental Facilities. (a) ~~The Borrower may on one or more occasions~~ At any time after the Closing Date, the Borrower may by written notice to the Administrative ~~Agent, request:~~ Agent elect to request (i) ~~an increase in any~~ prior to the Latest Revolving Credit Maturity Date, one or more increases to the Revolving Credit Commitments (~~each~~any such increase, ~~a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof,~~ “Incremental Revolving Credit Commitments”), ) and/or (ii) the establishment of one or more new term loan ~~commitments~~ facilities, which may take the form of ~~the same Class as~~ an increase to any ~~outstanding Term Loan~~ then-existing term loan facility (~~each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each,~~ an “Incremental Term Loan Facility”; the commitments in respect ~~thereof~~ thereof, the “Incremental Term Loan Commitments” ~~and~~ and, together with the Incremental Revolving Credit Commitments, the “Incremental Loan Commitments”; ). Each Incremental Revolving Credit Commitment and Incremental Term Loan Commitment shall be in an aggregate principal amount not in excess of the ~~loans made pursuant~~ 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 ~~commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the “Incremental Facilities”~~date); 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 (I) specify (iA) 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 ~~ten (10)~~ five 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 (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (iiB) the ~~amount~~ identity of each Lender or other Person that is a Person that would be permitted to be an assignee of the Loans pursuant to Section 13.6(b) (each, an “Incremental Revolving 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 ~~being requested~~ or Incremental Term Loan Commitments, as applicable, be allocated, and (~~it being agreed~~ II) may also provide the proposed amounts of such allocations; provided that (x) any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Revolving Credit Commitment or Incremental Term Loan Commitment), and (y) in the case of Incremental Revolving Credit Commitments, the Administrative Agent and the Letter of Credit Issuer shall have consented (such consent not to be unreasonably withheld or delayed) to such Person’s providing such Incremental ~~Commitment~~ 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 Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, (2) after giving effect to the making of any Incremental Term Loans or effectiveness of Incremental Revolving Credit Commitments, all representations and warranties made by any Credit Party contained herein or in the other Credit Documents shall be true and correct in all material respects (provided that any such ~~Lender~~ 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, in which case such representations and warranties shall have been true and correct in all material respects (provided that ~~fails~~ 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 ~~respond~~ one or more Joinder Agreements executed and delivered by the 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 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 Loans, and (y) the conditions applicable to the availability of Loans pursuant to such ~~approach~~ Incremental Loan Commitments shall include customary “limited conditionality” or “certain funds” conditionality provisions. (b) 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 ~~declined~~ identical terms to ~~provide~~ 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 Class of Incremental Revolving Credit Commitments and the Incremental Revolving Credit Lenders of such Class or the Class of Incremental ~~Commitment~~Term Loan Commitments and the Incremental Term Loan Lenders of such Class, as applicable, and (z) in the case of each notice to any Revolving Credit Lender with respect to an increase in the Revolving Credit Commitments, the respective interests in such Revolving Credit Lender’s Revolving Credit Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.14. (e) The terms and provisions of any Incremental Term 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 ~~Person that~~ such provisions are applicable only after the ~~Borrower proposes~~ 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 ~~become an Incremental~~ 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, ~~if such Person is not then a Lender~~the Letter of Credit Issuer or, ~~an Affiliate~~ in the case of ~~a Lender~~ clause (x) or ~~an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to~~ (y) of this paragraph (e), the Administrative Agent)~~. (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in~~ . In any event,: (i) ~~if the Weighted Average Yield applicable to~~ any Incremental ~~Term Loans issued on or~~ Revolving Credit Commitments shall have the same terms and ranking as the Revolving Credit Commitments prior to the ~~date that is twelve~~ Increased Amount Date (~~12) months after~~ as such terms may be modified in accordance with the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loansimmediately preceding proviso); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ 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 ~~shorter~~ earlier 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 Tranche B~~ Initial Term Loans); (iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) ~~(x) subject~~ the Incremental Term Loans may share ratably in right of prepayment with the Initial Term Loans pursuant to ~~clauses (ii) and (iii) above~~Section 5.1 or 5.2 or otherwise; provided that the Incremental Term Loans may, as the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees~~ Borrower and the ~~amortization schedule~~ Incremental Term Loan Lenders may determine in their sole discretion, be afforded lesser payments; (v) the Effective Yield applicable to ~~any~~ the Incremental ~~Facility~~ Term Loans of each Class shall be determined by the Borrower and the Incremental Term Loan Lenders and ~~(y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect,~~ shall be ~~reasonably satisfactory~~ set forth in each applicable Joinder Agreement; provided, however, that the Effective Yield with respect 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 not be ~~required from~~ greater than the ~~Administrative Agent or any of the Lenders~~ Effective Yield with respect to the ~~extent that such financial maintenance covenant is also added for~~ then existing Initial Term Loans, plus 50 basis points per annum unless the ~~benefit of any Tranche B~~ interest rate with respect to the Initial Term Loans ~~remaining outstanding after~~ is increased so as to cause the ~~effectiveness of such Incremental Facility Agreement); (v) any~~ then applicable Effective Yield on the Initial Term Loans to equal the Effective Yield then applicable to the Incremental Term Loans ~~may participate on a pro rata~~ minus 50 basis ~~or less than pro rata basis~~ points (~~but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of~~ this proviso to this clause (v), the ~~Term Loans, as specified in the applicable Incremental Facility Agreement~~“MFN Protection”); (vi) ~~any Incremental Commitments and Incremental Loans shall, as elected by~~ (x) 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 liens securing the ~~Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any such~~ Incremental ~~Commitments or Incremental~~ Term Loans ~~that are~~ will rank pari passu with ~~or junior to~~ the ~~Facilities with respect to security shall be subject to~~ liens securing the ~~Pari Passu Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement, as applicable);~~ Initial Term Loans and (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 (viiiy) the Incremental ~~Revolving Commitments and Incremental Revolving~~ Term Loans shall ~~be identical to~~ have the ~~Revolving Commitments~~ same guarantees as, 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 will rank pari passu in right of payment ~~and of security with~~ with, the ~~Revolving Loans and the~~ existing Initial 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (ef) Each ~~Incremental Facility~~ Joinder Agreement may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement (including the imposition of “call protection” on existing Term Loan tranches in the case of any increase thereto) and the other ~~Loan~~ Credit Documents as may be ~~necessary or appropriate~~necessary, in 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 Borrower ~~in connection with~~ to effect the ~~establishment~~ provision of ~~such new tranches~~ this Section 2.14, and this Section 2.14 shall supersede any provisions of Sections 5, 13.8(b) or ~~sub-tranches, including any amendments that are not adverse~~ 13.1 to the ~~interests of any Lender that are made to effectuate changes necessary to enable any~~ contrary. (g) The 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. (f) 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~~ Term Loan Commitments and the Incremental Revolving Credit Commitments extended or established pursuant to this Section 2.14 shall constitute Loans ~~of the applicable Class) hereunder~~and Commitments under, and ~~henceforth~~ shall be entitled to all the ~~rights of~~benefits afforded by, this Agreement and the other Credit Documents, and ~~benefits accruing to~~shall, ~~Lenders (or Lenders in respect of Commitments~~ without limiting the foregoing, benefit equally and ~~Loans of~~ ratably from the ~~applicable Class) hereunder~~ Guarantee and ~~shall be bound~~ security interests created 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~~ Security Documents. ~~Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and~~ The Credit Parties shall take any Incremental Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental 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 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 ~~notice from the Borrower referred to in Section 2.21(a) (Incrementa~~such Incremental Term Loans or any such Incremental Term Loan Commitments and Incremental Revolving Credit Commitments.

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 Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent~~Agent elect to request, ~~request:~~ prior to the Latest Maturity Date, additional term loans hereunder (~~i) an increase in~~ any ~~Revolving Commitments (each~~such additional term loans, a the “~~Revolving Commitment Increase~~Incremental Loans” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitmentstherefor, 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 (i) the total aggregate initial principal amount (as of the date of incurrence or availability thereof) of such requested Incremental Loans or Incremental Commitments, when added to the aggregate principal amount of ~~all the~~ Incremental ~~Commitments~~ Equivalent Debt incurred at ~~any time~~ such time, shall not exceed the ~~Permitted~~ Incremental ~~Amount applicable~~ 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 ~~at such time less the aggregate amount of Incremental Equivalent Indebtedness incurred~~ is permitted pursuant to ~~clause (w)~~ the terms of the ~~definition of “Permitted Debt”.~~ Revolving Indebtedness Documents. (b) Each such notice shall specify (i) the date (each, an “Incremental Closing Date”) on which the Borrower proposes that the Incremental ~~Commitments~~ Loans shall be ~~effective~~made, which shall be a date not less than ~~ten (10)~~ 10 Business Days (or such ~~shorter period~~ lesser number of days as may be ~~agreed~~ acceptable to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (iii) the ~~amount~~ 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 ~~being requested~~ be allocated (~~it being agreed~~ each, an “Incremental Lender”) and the amounts of such allocations; provided that (x) 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 be unreasonably withheld or delayed) and (y) any Lender approached to provide all or a portion of any Incremental ~~Commitment~~ Loans may elect or decline, in its sole discretion, to provide such Incremental ~~Commitment~~ Loans. (~~and any such Lender that fails to respond to such approach~~ c) The terms of each incurrence of Incremental Loans or Incremental Commitments shall be ~~deemed~~ determined by the Borrower and the applicable Incremental Lenders; provided that: (i) Incremental Loans or Incremental Commitments (x) secured on a pari passu basis with the Obligations shall not mature earlier than the Latest Maturity Date and the Weighted Average Life to ~~have declined to provide~~ Maturity of such Incremental ~~Commitment,~~ Loans or Incremental Commitments shall not be shorter than the remaining Weighted Average Life to Maturity of the Loans outstanding as ~~the case may be)~~ of such Incremental Closing Date and (y) ~~any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then~~ either secured on a ~~Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable~~ junior basis to the ~~Administrative Agent~~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 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 refinancing which does not mature earlier than 91 days after the Latest Maturity Date of the Loans outstanding as of such Incremental 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; (bii) ~~The terms and conditions~~ the All-In Yield of ~~the Incremental Commitments and the~~ any Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is incurred within twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 applicable Incremental Lenders ~~and~~ (~~y) all other terms of any Incremental Term Facility, if not consistent with~~ provided that the ~~terms of the Tranche B Term Facility in any material respect, shall be reasonably satisfactory~~ All-In Yield applicable 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~~ 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); (iii) (A) if such Incremental Loans are secured, they will be secured solely by Collateral ~~securing~~ on pari passu or junior (but in no event senior) basis with the ~~Facilities or~~ Obligations and, if necessary, will be subject to an Acceptable Intercreditor Agreement and (B) no Incremental Loans shall be 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 LoansSubsidiary Guarantors; (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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of ~~the same Class as any outstanding~~ Incremental Term Loan ~~(each, a “Term Loan Increase”), or (iii) the addition of one or more 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 (iA) 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative ~~Agent~~ Agent, and (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental Term Loan Commitment, ~~as the case may be) and~~ (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank 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 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 ~~the~~ any Incremental ~~Commitments~~ Revolving Commitment and ~~the Incremental~~ Revolving Loans and other extensions of credit to be made thereunder shall be ~~set forth in an~~ 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 ~~Facility Agreement; provided that, in any event,~~ Term Loans (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 of the latest Maturity Date of hereunder or any ~~Revolving Loans outstanding at the time of incurrence of~~ other then existing Incremental Term Loan Maturity Date (but may have amortization and/or customary prepayments prior to 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~~date), (2ii) ~~repayments required upon~~ shall have a Weighted Average Life to Maturity that is no shorter than the ~~maturity date~~ Weighted Average Life to Maturity of any other then existing Term Loans, (iii) shall be treated substantially the ~~Incremental~~ same as (and in any event no more favorably than) the Revolving ~~Commitments~~ Loans and the then existing Term Loans and (3iv) ~~repayment made in connection with a permanent repayment~~ shall have the same Guarantees as and ~~termination of commitments (subject to clause (D) below)) of Loans~~ 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 ~~Revolving Commitments~~ 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 Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made on thereunder, shall be designated as a ~~pro rata basis with~~ separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all ~~other Revolving Commitments~~ purposes of this Agreement. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment 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 part of any ~~such Class on a better than a pro rata basis as compared~~ Lender to increase its Revolving Commitment hereunder, or provide Incremental Term Loans, at any ~~other Class with a later maturity date than such Class~~time. (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 (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~~ 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 (including pro forma effect) to such Incremental Commitments and the making of ~~Incremental~~ Loans and issuance of Letters of Credit 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 of each Loan Party 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 (or, if qualified by materiality or “Material Adverse Effect”, in all respects) on and as of such ~~prior~~ date, ; (iii) 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~~thereof (and assuming, in 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds case of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Revolving 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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, 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~~ financial covenants set forth in Section ~~6.12~~ 6.11; (~~Financial Covenants~~iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with ~~respect~~ 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 ~~Fiscal Quarter~~ organizational power and authority of the Borrower ~~most recently ended~~ 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 ~~effectiveness~~ 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 ~~Commitments~~ 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~~ 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 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 (~~iii~~5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall ~~have delivered or caused to have been delivered to~~ be in pro forma compliance with the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent financial covenants set forth in ~~connection with any such transaction. (e)~~ 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 provisions of this ~~Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral~~ Section 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests no consent of any Lender ~~that are made to effectuate changes necessary to enable~~ (other than the Lenders participating in the increase or any Incremental ~~Loans~~ Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant 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 thereunderthis Section 2.20. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series”)~~ Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Lenders, shall automatically be adjusted to give effect thereto. (ge) 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 equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in ~~Section 2.21(a~~paragraph (a) above and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to paragraph (~~Incrementa~~e) above.

Appears in 2 contracts

Sources: Credit Agreement (Eagle Pharmaceuticals, Inc.), Credit Agreement (Eagle Pharmaceuticals, Inc.)

Incremental Facilities. ~~(a)~~ The Borrower may ~~on one or more occasions~~ from time to time after the Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) establish one or more ~~new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new~~ tranches of term loans or increase an outstanding tranche of term loans (~~each,~~ each an “Incremental Term Facility”; ), and/or increase the ~~commitments in respect thereof~~ Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term ~~Commitments”~~ Facility and ~~together with the~~ each Incremental Revolving ~~Commitments, the “Incremental Commitments”; the loans made pursuant~~ Increase are collectively referred to ~~such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the~~ as “Incremental Facilities”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided ~~that~~ that: (i) the ~~aggregate~~ principal amount of ~~all the~~ such Incremental ~~Commitments at any time~~ Facility shall not exceed the ~~Permitted Incremental Amount applicable to the Incremental Commitments at such time less~~ greater of: (A) $250,000,000 minus the aggregate initial principal amount of all previously incurred Incremental ~~Equivalent~~ 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 ~~incurred pursuant to clause (w)~~ for purposes of such calculation of the ~~definition of “Permitted Debt”. Each such notice~~ Consolidated Senior Secured Leverage Ratio. (ii) no Default shall ~~specify (i) the date~~ have occurred and be continuing, and no Default would exist after giving effect to any Incremental Facility, both 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 may be agreed to by the Administrative Agent) after the date on which such ~~notice~~ Incremental Facility is ~~delivered to~~ requested and on the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide date on which such Incremental 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 Borrower proposes Facility is to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans)effective; (iii) no each Incremental ~~Maturity Date of any Incremental Term~~ Facility shall be ~~earlier than~~ in a minimum amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity DateAdministrative Agent may agree); (iv) ~~(x) subject~~ no existing Lender shall be under any obligation to ~~clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to~~ provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be ~~determined by the Borrower~~ in such Lender’s sole and the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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)absolute discretion; (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~~ borrower and guarantors for each Incremental Facility ~~Agreement; (vi) any~~ shall be the same as for the Revolving Credit Facility, each 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 Facility shall ~~not~~ be secured by ~~any assets other than~~ Liens in the Collateral that are parity with the Liens in 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 Obligations and each 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~~Obligations; (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 (B) ~~any such~~ documentation from each Person providing an Incremental ~~Revolving Commitments or~~ Facility Commitment evidencing its Incremental ~~Revolving Loans~~ Facility Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent; (vii) the Administrative Agent shall ~~not mature earlier than~~ have received: (A) a certificate of the ~~latest Maturity Date~~ Borrower dated as of ~~any Revolving Loans outstanding at~~ the ~~time of incurrence~~ effective date of such Incremental ~~Revolving Commitments; (C)~~ Facility signed by a Responsible Officer of the ~~borrowing and repayment (except for~~ Borrower (1) ~~payments~~ certifying and attaching resolutions adopted by the board of ~~interest and fees at different rates on~~ directors or equivalent governing body of the Borrower approving such Incremental ~~Revolving Commitments~~ Facility (~~and related outstandings~~which may be the same resolutions as those delivered pursuant to Section 4.01(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) ~~repayments required upon the maturity date of the Incremental Revolving Commitments~~ certifying that, before 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~~Facility, (iix) 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~~ contained in Article ~~III and in the~~ V or any other Loan ~~Documents shall be~~ Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are 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~~respects (or, ~~in each case, on and as of such date, except~~ in the case of any such ~~representation~~ representations and ~~warranty~~ warranties that ~~expressly relates~~ 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 ~~a prior~~ the extent that such representations and warranties specifically refer to an earlier date, in which case ~~such representation and warranty~~ 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 ~~prior~~ earlier date, and (~~iii~~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 Revolving Increase, 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 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 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 Facility; (~~Financial Covenants~~D) ~~with respect~~ to the ~~Fiscal Quarter~~ extent requested by the Administrative Agent, customary opinions of legal counsel to 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 have delivered or caused to have been delivered~~ Borrower, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such ~~customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and~~ Incremental Facility; and (E) such other documents ~~as shall~~ and certificates it may reasonably ~~be requested by~~ 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 in connection with any such transaction.~~Agent; (dviii) ~~Notwithstanding~~ in the ~~foregoing provisions~~ case of ~~this Section 2.21~~ an Incremental Revolving Increase: (A) the terms and conditions of such Incremental ~~Facilities) or in any~~ Revolving Increase (other ~~provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition,~~ than upfront fees payable to the ~~extent agreed by the applicable~~ Lenders providing such Incremental ~~Commitments~~Revolving Increase and arrangement, structuring, underwriting and similar fees not paid generally to all Lenders providing such Incremental Revolving Increase) shall be the ~~conditions precedent~~ same as the terms applicable to the ~~Borrower’s right to request such Incremental~~ Aggregate Revolving Commitments ~~for a Limited Condition Acquisition shall be limited to the following:~~ hereunder; and (~~i) (x~~B) on the effective date of ~~execution of~~ such Incremental Revolving Increase, the ~~definitive documentation~~ existing Lenders with ~~respect~~ Revolving Commitments shall make such assignments (which assignments shall not be subject to ~~such Limited Condition Acquisition, all~~ the requirements set forth in ~~clause (c)(i~~Section 10.06(b)) of the outstanding Revolving Loans and ~~(ii) above shall be satisfied~~ participation interests in Letters of Credit and ~~(y) on~~ Swing Line Loans to the ~~date of closing of~~ Lenders providing such ~~Limited Condition Acquisition~~ Incremental Revolving Increase, and the ~~funding of~~ Administrative Agent may make such adjustments to the ~~applicable Incremental Loans~~Register as are necessary, (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided so that the Borrower will make all the representations and 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~~ 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 ~~making~~ Lenders providing such Incremental Term Facility; provided that: (1) the final maturity of such Incremental ~~Loans and other extensions~~ Term Facility shall not be earlier than the later of ~~credit thereunder to be made on~~ (x) the ~~date of effectiveness thereof, the Borrower shall be in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants)~~ Maturity Date with respect to Revolving Loans and (y) the ~~Fiscal Quarter~~ final maturity of any other Incremental Term Facility; (2) (x) if such Incremental Term Facility is an Incremental Tranche A Term Facility, the ~~Borrower most recently ended as of the date of effectiveness~~ Weighted Average Life of such Incremental ~~Commitments on~~ Term Facility shall be customary for a ~~pro forma basis and~~ tranche A term loan (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as ~~shall reasonably be requested~~ determined by the Administrative Agent in ~~connection~~ its discretion in consultation with the Borrower) and in any ~~such transaction. (e) Each Incremental Facility Agreement may, without~~ event shall not be shorter than the ~~consent~~ then remaining Weighted Average Life of any ~~Lender~~outstanding Incremental Tranche A Term Facility; and (y) if such Incremental Term Facility is an Incremental Tranche B Term Facility, ~~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, 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 Borrower in connection with the establishment Weighted Average Life of such ~~new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender Facility shall be ~~deemed to be~~ customary for a ~~“Lender”~~ tranche B term loan (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. 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 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 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 ~~notice from~~ 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 ~~Borrower referred~~ 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 prepayments of other Incremental Term Facilities pursuant to Section ~~2.21(a~~2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding other Incremental Term Facilities) and shall have ratable voting rights with other Incremental Term Facilities (~~Incrementa~~or otherwise provide for more favorable voting rights for the then outstanding other Incremental Term Facilities).

Appears in 2 contracts

Sources: Credit Agreement (5.11 Abr Corp.), Credit Agreement (Compass Group Diversified Holdings LLC)

Incremental Facilities. (a) The Borrower ~~may~~ may, at any time, on one or more occasions ~~after the Closing Date, by written notice~~ pursuant to ~~the Administrative Agent, request:~~ an Incremental Facility Agreement (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of add one or more new tranches of term ~~loans~~ facilities and/or increase the principal amount of the Tranche B-1 Term Loans or any Additional Term Loans by requesting new term loan commitments to be added to such Loans (~~each~~any such new tranche or increase, an “Incremental Term Facility~~”; the commitments in respect thereof “Incremental Term Commitments~~” and ~~together with the Incremental Revolving Commitments, the “Incremental Commitments”; the~~ any loans made pursuant to ~~such commitments~~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 new tranche or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental ~~Term Facilities~~Revolving Loans” and, together with ~~the Revolving Commitment Increases and the~~ any Incremental Term ~~Loan Increases~~Loans, ~~the~~ “Incremental ~~Facilities~~Loans”); provided that the aggregate principal amount of all Incremental Facilities incurred after the ~~Incremental Commitments at any time~~ Third Amendment Effective Date 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 Cap; provided, further, that: (i) ~~the date on which the Borrower proposes that the~~ no Incremental ~~Commitments shall~~ Commitment may be ~~effective, which shall be a date not~~ less than ~~ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and~~ $5,000,000, (ii) except as separately agreed from time to time between the ~~amount of the Incremental Commitments being requested (it being agreed that (x)~~ Borrower and any Lender, no Lender ~~approached~~ shall be obligated to provide any Incremental ~~Commitment may elect or decline~~Commitment, ~~in its sole discretion,~~ and the determination to provide such ~~Incremental Commitment (and any such Lender that fails to respond to such approach~~ commitments shall be ~~deemed to have declined to provide~~ within the sole and absolute discretion of such ~~Incremental Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental~~ Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (iiii) 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 ~~Weighted Average~~ 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 ~~issued on or prior~~ in right of payment and with respect to ~~the date that is twelve (12) months after the Closing Date exceeds by~~ security, such Effective Yield applicable thereto will not be more than 0.50% ~~per annum~~ higher than the Effective Yield applicable ~~Weighted Average Yield payable pursuant~~ to the ~~terms~~ Class of ~~this Agreement,~~ Initial Term Loans denominated in the same currency as ~~amended through~~ such Incremental Term Facility unless the ~~date of such calculation,~~ Applicable Rate with respect to ~~Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B~~ such Initial Term Loans ~~shall automatically~~ is adjusted to be ~~increased~~ equal to ~~a level such that~~ the ~~Weighted Average~~ Effective Yield with respect to the ~~Tranche B~~ relevant Incremental Term ~~Loans is~~ Facility, minus 0.50~~% per annum below~~ %, (vi) the ~~Weighted Average Yield~~ final maturity date 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the weighted average life to maturity of any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date at the time of the incurrence thereof, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Tranche B~~ then-existing tranche of Term Loans (without giving effect to ~~prior~~ any prepayments ~~that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans~~thereof);, (~~iii~~viii) ~~no Incremental Maturity Date of~~ (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Term Loans in right of payment and pari passu with or junior to any then-existing tranche of Term Loans with respect to security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to the Term Loans in right of payment or security and documented in a separate agreement, it shall be ~~earlier~~ subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the ~~initial Tranche B Term Maturity Date~~ Collateral, (A) any prepayment (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity any scheduled amortization payment) of ~~which~~ Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security shall be ~~no earlier than the initial Tranche B~~ made on a pro rata basis with such existing Term ~~Maturity Date); (iv) (x) subject to clauses (ii)~~ Loans and (~~iii~~B) ~~above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the~~ any prepayment (other than any scheduled amortization ~~schedule applicable~~ payment) of Incremental Term Loans that are subordinated to any ~~Incremental Facility~~ then-existing Term Loans in right of payment or security shall be ~~determined by~~ made on a junior basis with respect to such existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except, in each case, that the Borrower and the lenders providing the relevant Incremental ~~Lenders and~~ 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 (ybut not on a greater than pro rata basis), (x) except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this 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 terms of the ~~Tranche B~~ Initial Term ~~Facility in any material respect~~Loans, shall be reasonably satisfactory to the Borrower and 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 (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 ~~extent any financial maintenance covenant is added~~ 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 are then conformed (or added) to the Loan Documents for the benefit of ~~any Incremental~~ the Term ~~Loans or any Incremental Term Commitments~~Lenders or, ~~no consent shall be required from~~ as applicable, the Administrative Agent (i.e., by conforming or ~~any of the Lenders~~ adding a term to the ~~extent that such financial maintenance covenant is also added for the benefit of any Tranche B~~ then-outstanding 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 pursuant to the applicable Incremental Facility Agreement;) shall be deemed satisfactory to the Administrative Agent), (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); (viixii) the proceeds of any Incremental Facility ~~shall~~ may be used for working capital and other general corporate ~~purposes, including to finance growth Capital Expenditures, to make Permitted Acquisitions~~ purposes 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~~ use not prohibited by this Agreement~~; and~~, (~~viii~~xiii) on the date of the making of any Incremental ~~Revolving Commitments and Incremental Revolving~~ Term Loans ~~shall~~ that will be ~~identical~~ added to ~~the Revolving Commitments and the Revolving~~ any Class of Initial Term Loans or Additional Term 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 set forth in Section 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class; and (xiv) at no time shall there be more than three separate Maturity Dates in effect with respect to any existing Additional Revolving Facility at any time. (b) 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 the Administrative Agent shall have consented (such consent not to be unreasonably withheld) 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 ~~Section 2.21~~ Agreement. (d) As a condition precedent to the effectiveness of any Incremental ~~Facilities~~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 ~~otherwise~~Incremental Loans and (iv) the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof: (A) ~~any~~ certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental ~~Revolving Commitments~~ Facility or Incremental ~~Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Loans and the Term~~ 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 ~~such~~ Incremental Revolving ~~Commitments or Incremental Revolving Loans shall not mature earlier than~~ Facility, then notwithstanding any other provision of this Agreement to 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)contrary, (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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 Term Lender) to amend the terms of this Agreement pursuant to an amendment hereto (or an amendment and restatement hereof), ~~effect~~ in form and substance reasonably satisfactory to the Administrative Agent, 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 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 Facility and definitions relating to the 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 other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or ~~appropriate,~~ sub-tranches in ~~the opinion~~ respect of ~~the Administrative Agent,~~ Loans or commitments increased or extended pursuant 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) 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, including any amendments that are not adverse to the interests 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 in each case on terms consistent with ~~an existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder~~this Section 2.22. (f) ~~Upon~~ To the ~~effectiveness~~ extent the provisions of an clause (a)(xiii) above require that Term Lenders making new Incremental ~~Commitment of any Incremental Lender,~~ Term Loans add such Incremental ~~Lender shall be deemed~~ Term Loans to ~~be a “Lender” (and a Lender in respect~~ the then outstanding borrowings of ~~Commitments and~~ LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term 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 ~~Class) hereunder, and henceforth shall be entitled~~ to ~~all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and~~ outstanding LIBO Rate Loans of the ~~applicable Class) hereunder~~ respective Class and ~~shall be bound by all agreements, acknowledgements and other obligations~~ which will end on the last day 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 Commitments and Incremental Loans for all purposes of this Agreementsuch Interest Period). (g) ~~Subject~~ Notwithstanding anything to the ~~terms and conditions set forth herein and~~ contrary in this Section 2.22 or in any other provision of any Loan Document, if the ~~applicable~~ proceeds of any Incremental Facility ~~Agreement, each Lender holding~~ are intended to be applied to finance an ~~Incremental Commitment of any Series shall make a loan to~~ acquisition and the ~~Borrower in an amount equal to such Incremental Commitment on the date specified in~~ Lenders or Additional Lenders providing such Incremental Facility ~~Agreement~~so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (h) ~~The Administrative Agent~~ This Section 2.22 shall ~~notify the Lenders promptly upon receipt by the Administrative Agent of~~ supersede any ~~notice from the Borrower referred to~~ provision in Section ~~2.21(a) (Incrementa~~2.18 or 9.02 to the contrary.

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 Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i~~) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii~~) one or more ~~new term loan commitments~~ increases in the amount of the ~~same~~ Revolving Commitments of any Class ~~as any outstanding Term Loan~~ (~~each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~each such increase, an “Incremental ~~Term Facility~~Revolving Commitment Increase”; ) and/or (ii) the ~~commitments in respect thereof “~~establishment of 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 (A) the aggregate amount 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 Commitments ~~at any time~~ and all Incremental Revolving Commitment Increases established hereunder shall not exceed the ~~Permitted Incremental Amount applicable to the Incremental Commitments at such time less~~ difference between (1) $100,000,000 and (2) the aggregate principal amount of ~~Incremental Equivalent~~ Permitted Secured Indebtedness incurred ~~pursuant to clause (w) of~~ after the ~~definition of “Permitted Debt”~~Effective Date. Each such notice shall specify (iA) the date on which the Borrower proposes that the Incremental ~~Commitments~~ Revolving Commitment Increases or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten (10)~~ 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 (iiB) the amount of the Incremental ~~Commitments~~ Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment Increase or Incremental Term Commitments, (~~and any such Lender that fails~~ y) the Borrower shall not be required to ~~respond to such~~ approach ~~shall be deemed to have declined~~ existing Lenders first to provide ~~such~~ any Incremental ~~Commitment, as the case may be)~~ 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 (yz) any Person that the Borrower proposes to become an a Lender under any Incremental ~~Lender~~Term Commitment or Incremental Revolving Commitment Increase, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Commitment Increase, each Issuing Bank and the Swingline Lender). (b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the ~~Incremental~~ same as those of the Revolving Commitments and Revolving Loans of the ~~Incremental Loans to be made thereunder~~ Class that is being increased and shall be ~~set forth in an Incremental Facility Agreement~~treated as a single Class with such Revolving Commitments and Revolving Loans; provided ~~that, in any event, (i) if~~ that the ~~Weighted Average Yield~~ interest margin or commitment fees applicable to any Incremental ~~Term Loans issued on~~ Revolving Commitment Increase may exceed the interest margin or ~~prior~~ fees payable with respect to the ~~date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable~~ 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 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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 matters contemplated by clauses (i), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) and (iii) below or customary for a “Term B” institutional loan tranche, any differences shall be reasonably satisfactory to the ~~weighted average life~~ Administrative Agent); provided that (i) the Weighted Average Life to ~~maturity~~ Maturity of any Incremental Term Loans shall be no shorter than the remaining ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Tranche B Term Loans~~ Initial Terms Loans, (~~without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii~~ii) no Incremental Term Loan Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the ~~initial Tranche B~~ Initial Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 Loan shall rank pari passu or junior in right of payment and of security with the ~~Revolving~~ Initial Term Loans and shall be secured only by the Collateral securing the Obligations. Any Incremental Term ~~Loans;~~ Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (Beach a “Series”) ~~any such~~ of 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 Term Commitments and ~~(3) repayment made in connection with a permanent repayment and termination~~ Incremental Term Loans for all purposes 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 Classthis Agreement. (c) 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 ~~Parent, 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) ~~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 Term Commitments or Incremental Revolving Commitment Increases and the making of ~~Incremental~~ Loans and issuance of Letters of Credit 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 of each Loan Party 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,~~ 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, (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 ~~Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof~~Revolving Commitment Increase is fully drawn), the Borrower shall be in compliance on a Pro Forma Basis with the ~~Financial Covenants set forth~~ covenants contained in ~~Section~~ Sections 6.12 ~~(Financial Covenants) with respect to~~ and 6.13, recomputed as of the ~~Fiscal Quarter~~ last day of the most-recently ended fiscal quarter of the Borrower ~~most recently ended as~~ 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 ~~date of effectiveness of such Incremental Commitments on a pro forma basis~~ last fiscal quarter included in the Pro Forma Financial Statements) and (iv) the Borrower shall ~~have delivered or caused~~ make any payments required to ~~have been delivered~~ be made pursuant to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent Section 2.16 in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental ~~Commitments, the conditions precedent to the Borrower’s right to request such~~ Term Commitments or 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 Revolving Commitment Increase and the ~~funding of the applicable Incremental Loans, (A) no Event of Default~~ related transactions 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) 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, to give effect to the provisions of this Section, ~~including, without limitation, any amendments and/or supplements~~ provided that to the ~~documents delivered to satisfy~~ extent that any term of any such amendment could not be approved as an amendment of this Agreement by the ~~Collateral and Guarantee Requirement (including~~Lenders providing such Incremental Term Commitments voting as a single Class without the approval of any other Lender, ~~without limitation, amendments~~ such amendment will be subject to the ~~Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion~~ approval of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderrequisite Lenders required under this Agreement. (fd) 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~~. Any~~ , and (ii) in the case of any Incremental ~~Commitments established pursuant to an~~ 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 ~~that have identical terms~~ 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 ~~conditions~~(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 ~~any Incremental Loans made thereunder~~the Applicable Percentage of all the Revolving Lenders, shall automatically be ~~designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement~~adjusted to give effect thereto. (ge) 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. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) ~~(Incrementa~~and of the effectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitment Increase, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).

Appears in 2 contracts

Sources: Credit Agreement (Costar Group Inc), Credit Agreement (Costar Group Inc)

Incremental Facilities. (a) The Borrower ~~may on~~ and any one or more ~~occasions after~~ Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the ~~Closing Date, by written notice to the Administrative Agent, request:~~ amount of their Incremental Term Loans (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”~~; the commitments in respect thereof~~ ) or Revolving Commitments (“~~Incremental Term Commitments” and together with the Incremental~~ Increased Revolving ~~Commitments, the “Incremental~~ Commitments”; ~~the loans made pursuant to such commitments, “~~together with any Incremental Term ~~Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases~~Facility, the “Incremental Facilities”)~~; provided that the aggregate amount of all the Incremental Commitments at any time shall not exceed the Permitted Incremental Amount applicable~~ , as applicable, by executing and delivering 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 Administrative Agent an Increased Facility Activation Notice specifying (i) the ~~date on which the Borrower proposes that the Incremental Commitments shall be effective~~amount of such increase, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the ~~amount~~ applicable Increased Facility Closing Date, (iii) in the case of ~~the~~ Incremental ~~Commitments being requested (it being agreed that~~ Term Loans, (x) ~~any Lender approached to provide any~~ the applicable Incremental ~~Commitment may elect or decline~~Term Maturity Date, in its sole discretion, to provide such Incremental 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) the amortization schedule for such Incremental Term Loans, and (z) the Applicable Margin for such Incremental Term Loans; provided, that (i) 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 incurrence of any ~~Person that the Borrower proposes to become an~~ such Incremental ~~Lender~~Facility (assuming, if such ~~Person is not~~ Incremental Facility consists of Increased Revolving Commitments, such Increased Revolving Commitments are fully drawn as of such date) and after giving effect to other permitted pro forma adjustment events and any repayments of Indebtedness after the beginning of the relevant period but prior to or simultaneous with the incurrence of such Incremental Facility, (x) the Borrower shall be in compliance with the financial covenants set forth in Section 7.1 recomputed as of the last day of the fiscal quarter of the Borrower then ~~a Lender, an Affiliate of a Lender~~ most recently ended for which financial statements described in Section 6.1(a) or ~~an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent).~~ (b) ~~The terms and conditions~~ have been delivered, (y) the Consolidated First Lien Leverage Ratio of the ~~Incremental Commitments~~ Borrower and its Restricted Subsidiaries as of the ~~Incremental Loans to be made thereunder~~ 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 ~~an Incremental Facility Agreement; provided that,~~ Article IV shall be true and correct in ~~any event,~~ all material respects (~~i) if the Weighted Average Yield~~ except that such materiality qualifier shall not be applicable to the extent any ~~Incremental Term Loans issued on~~ such representations and warranties are already qualified or ~~prior to the~~ modified by materiality, it being understood and agreed that any representation or warranty which by its terms is made as of a specified date that is twelve (12) months after the Closing Date 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, 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~~ true and correct in all material respects only as of such specified date) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, (iv) the maturity date and Weighted Average Yield that is shorter than the then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, as applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable Life 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the weighted average life to maturity Maturity of any Incremental Term Loans shall be no 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 Tranche B Term Loans); (iii) no Incremental Maturity Date of any such Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than (or the ~~initial Tranche B~~ same as) the maturity date and Weighted Average Life to Maturity, respectively, of the Term ~~Maturity Date);~~ Loans, (ivv) ~~(x) subject to clauses (ii)~~ the interest rates and ~~(iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the~~ amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the ~~Incremental Lenders~~ lenders thereunder and (yvi) ~~all other~~ 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 ~~any~~ an Incremental Term Facility, ~~if not consistent with~~ the ~~terms of the Tranche B~~ Term Facility ~~in any material respect~~(except to the extent permitted by clause (iv) and (v) above), ~~shall be~~ reasonably satisfactory to the Administrative Agent (~~except~~ including as to the identity of the New Lenders); provided, that if the total yield (calculated for ~~covenants~~ both the Incremental Term Loans and ~~terms that apply solely to~~ the Term Loans, including the upfront fees, any ~~period after the latest Maturity Date that is in effect on the effective date~~ interest rate floors and any OID (as defined below)) shared with all providers of such Incremental ~~Facility Agreement)~~ 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 ~~extent any financial maintenance covenant is added~~ interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the ~~benefit~~ Loans shall be increased so that the total yield in respect of ~~any~~ such Incremental Term Loans ~~or any~~ is no higher 0.50% greater than the total yield for the existing Term Loans. Notwithstanding the foregoing, (i) 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 ~~Commitments~~Loans obtained pursuant to this paragraph and the amount of any Second Lien Incremental Loans, no shall not exceed $25,000,000 and (ii) without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be ~~required from~~ in a minimum amount of at least $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 additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to 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 H-3, whereupon such bank, financial institution or ~~any of the Lenders~~ other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent ~~that such financial maintenance covenant is also added for~~ as if originally a party hereto and shall be bound by and entitled to the ~~benefit~~ benefits of ~~any Tranche B Term Loans remaining outstanding after the effectiveness of such Incremental Facility~~ this Agreement);. (vc) 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 Unless otherwise agreed by the ~~Borrower~~Administrative Agent, ~~be equal or junior in right of payment with any remaining portion of the Facilities and,~~ on each Increased Facility Closing Date with respect to ~~security with~~ the Revolving Facility, 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 (and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any ~~remaining portion~~ Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the ~~Facilities~~other Lenders in the same Eurodollar Tranche (or, ~~pari passu~~until the expiration of the then-current Interest Period, ~~junior or unsecured and shall not be secured by any assets~~ such 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 rate as shall be ~~subject to~~ agreed upon between the ~~Pari Passu Intercreditor Agreement and/or~~ Borrower and the ~~Junior Lien Intercreditor Agreement, as applicable);~~relevant Lender. (~~vii~~d) 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 Notwithstanding anything to the contrary in this ~~Section 2.21~~ Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (~~Incremental Facilities~~but only to the extent) ~~or otherwise: (A) any such Incremental Revolving Commitments or Incremental Revolving Loans shall rank pari passu in right of payment~~ necessary to reflect the existence 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 terms 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~~ Term 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 evidenced thereby. 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~~ deemed amendment may 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested writing by the Administrative Agent ~~in connection~~ with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s ~~right~~ consent (not to ~~request such Incremental Commitments for a Limited Condition Acquisition shall~~ be ~~limited~~ unreasonably withheld) and furnished 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 transactionparties hereto. (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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus Inc.)

Incremental Facilities. (a) The Borrower may on one or more occasions after the ~~Closing~~ First Refinancing Facility Agreement Effective Date, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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~~ established hereunder shall not exceed (A) $50,000,000 and (B) such greater amount that will not result in the ~~Permitted~~ First Lien Secured Leverage Ratio, determined on a Pro Forma Basis giving effect to such Incremental ~~Amount applicable to~~ Facility (assuming that all Revolving Commitments, including any Incremental Revolving Commitments, have been fully funded with Revolving Loans and excluding in the ~~Incremental Commitments at such time less the aggregate amount~~ calculation of ~~Incremental Equivalent Indebtedness incurred pursuant to clause (w)~~ Available Domestic Cash and Available Foreign Cash for purposes of the ~~definition~~ First Lien Secured Leverage Ratio the cash proceeds of ~~“Permitted Debt”~~the Borrowings under any such Incremental Revolving Facility or Incremental Term Facility, but not excluding the use of such proceeds) exceeding 3.75 to 1.00. Each such notice shall specify (iA) 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 ~~ten (10)~~ 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 (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender). (b) The terms of any Incremental Revolving Commitments and ~~conditions~~ Revolving 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 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 maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (ii) there shall be no mandatory reduction of any Incremental Revolving Commitments prior to the Revolving Maturity Date and (iii) any upfront fees applicable to any Incremental Revolving Facility and Incremental Revolving Commitments and Incremental Revolving Loans shall be as determined by the 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 be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the Term Commitments and the Term Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield applicable~~ 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 ~~issued on or prior to the date that is twelve (12) months after the Closing Date~~ exceeds by more than 0.50% per annum the ~~applicable Weighted Average Yield payable pursuant~~ 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 ~~terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B~~ Term Loans, then the Applicable ~~Margin~~ Rate then in effect for ~~Tranche B~~ the Term Loans shall automatically be ~~increased to a level~~ adjusted such that the ~~Weighted Average Yield with respect~~ all-in yield relating to the ~~Tranche B~~ Term Loans is equal to the all-in yield relating to the Incremental Term Loans minus 0.50~~% per annum below~~ %, (ii) the ~~Weighted Average Yield with respect~~ upfront fees, interest rates and amortization schedule applicable 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term ~~Loans or~~ Facility and Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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~~ determined by the ~~extent of such differential between interest rate floors;~~ Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (iiiii) 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 B Term~~ Terms Loans and (~~without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii~~iv) no Incremental Term Loan Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date~~); (iv) (x) subject~~ . Any Incremental Term Facilities established pursuant to ~~clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any~~ an Incremental Facility ~~shall be determined by the Borrower~~ Agreement that have identical terms and ~~the Incremental Lenders~~ conditions, and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ made thereunder, shall be designated as a separate series (each a “Series”) of 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 Commitments and 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~~ for all purposes 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 . Notwithstanding anything to the contrary ~~in this Section 2.21 (~~herein, each Incremental ~~Facilities) or otherwise: (A) any such Incremental Revolving Commitments or Incremental Revolving Loans~~ Facility and all extensions of credit thereunder shall ~~rank~~ be secured by the Collateral on a pari passu ~~in right of payment and of security~~ basis 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 ClassLoan Document Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by ~~the Parent~~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) ~~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 and issuance of Letters of Credit thereunder to be made on such ~~date~~date (provided 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) ~~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 of each Loan Party 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~~correct, in all material respects, in each ~~case,~~ 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~~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 ~~other extensions~~ excluding in the calculation of ~~credit thereunder to be made on~~ Available Domestic Cash and Available Foreign Cash for purposes of the ~~date~~ covenant calculations the cash proceeds of ~~effectiveness thereof~~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 ~~Financial Covenants set forth~~ covenant contained in Section 6.12 (~~Financial Covenants) with respect~~ or, if the proceeds of Loans made pursuant to the ~~Fiscal Quarter of the Borrower most recently ended as of~~ relevant Incremental Facility are being used to finance an acquisition, on the date of ~~effectiveness~~ signing of the definitive agreement for such ~~Incremental Commitments on a pro forma basis and~~ 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 or caused to have been~~ delivered to the Administrative Agent such ~~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~~. (d) Notwithstanding the foregoing provisions~~ , including a certificate of ~~this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance~~ a ~~Limited Condition Acquisition,~~ Financial Officer to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 effect set forth in ~~clause~~ clauses (~~c)(i) and~~ i), (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) ~~the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions~~above, ~~board resolutions, secretary’s certificates, officer’s certificates and other documents as shall~~ together with reasonably ~~be requested by the Administrative Agent in connection~~ detailed calculations demonstrating compliance with ~~any such transaction.~~ clause (eiii) 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series~~Revolving Commitment”) . For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Revolving Lenders, shall automatically be adjusted to give effect thereto. (ge) 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. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e). (~~Incrementa~~h) This Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 2 contracts

Sources: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)

Incremental Facilities. (a) The Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent, request: (i) an increase in~~ Agent at any ~~Revolving Commitments (each, a “Revolving Commitment Increase” and~~ time after the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii)~~ Acquisition Effective Date elect to request the establishment of one or more new term loan commitments ~~of the same Class as any outstanding Term Loan~~ (each, a “Term Loan Increase”), or (iii) the addition of one or more 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~~ ), in an aggregate principal amount not 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~~ Maximum Incremental Facilities Amount ~~applicable~~ 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 ~~Commitments at~~ Facilities Amount on such ~~time less the aggregate amount~~ date of ~~Incremental Equivalent Indebtedness incurred pursuant to clause (w)~~ determination), and integral multiples of ~~the definition~~ $10,000,000 in excess of ~~“Permitted Debt”~~that amount. Each such notice shall specify ~~(i)~~ 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 ~~ten (10)~~ 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~~ (~~ii)~~ or such shorter period as may be agreed by the ~~amount~~ Administrative Agent); provided that any Lender offered or approached to provide all or a portion of the Incremental Commitments ~~being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment~~ 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 approval would be required pursuant to Section 9.04 for an assignment of Loans to such Incremental ~~Commitment (and any such~~ Lender. The Borrower shall notify the Administrative Agent prior to the Increased Amount Date of the identity of each 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~~ or other Person that is an Eligible Assignee (each, an “Incremental Lender”) to whom the Borrower proposes ~~to become an~~ any portion of such Incremental ~~Lender, if~~ Commitments be allocated and the amounts of such ~~Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent)~~allocations. (b) ~~The terms~~ 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 ~~conditions~~ 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 a 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 “materiality”, “Material Adverse Effect” or similar language shall be true and 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 “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 Weighted Average Life to Maturity of all Incremental Loans shall be ~~made thereunder~~ no shorter than the Weighted Average Life to Maturity of the then existing Loans, (ii) the applicable Incremental Loan Maturity Date shall be no earlier than the Latest Maturity Date at such time; provided, that at no time shall the Loans (including Incremental Loans) have more than five different maturity dates, (iii) all Incremental Loans shall rank pari passu in right of payment and with respect to security with the then existing Loans, (iv) all Incremental Loans shall be guaranteed by the Loan Parties and be secured by a lien on any property or 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 an each applicable Incremental ~~Facility Agreement~~Amendment; ~~provided that~~provided, ~~in any event, (i)~~ however, that if the ~~Weighted Average~~ All-In Yield applicable to ~~any~~ such Incremental ~~Term~~ Loans ~~issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more~~ shall be greater than ~~0.50% per annum~~ the applicable ~~Weighted Average~~ All-In Yield payable on any other Class of Loans pursuant to the terms of this ~~Agreement,~~ Agreement as amended through the date of such ~~calculation~~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 ~~Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B Term~~ each such Class of Loans shall ~~automatically~~ be increased ~~to a level such that~~ by the ~~Weighted Average~~ applicable 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 then-remaining Weighted Average Yield of the Tranche B Term Loans)Differential; provided, further, that, if any Incremental ~~Term~~ Loans ~~or Incremental Revolving Loans, as applicable,~~ include a ~~Term SOFR~~ Eurocurrency or Alternate Base Rate floor that is greater than the ~~Term SOFR~~ Eurocurrency or Alternate Base Rate floor applicable to any existing Class of ~~Term Loans,~~ Loans such differential between interest rate floors shall be included in the calculation of ~~Weighted Average~~ All-In Yield for purposes of this clause (iv), but only to the extent an increase in the ~~Term SOFR~~ Eurocurrency or 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~~ Eurocurrency and Alternate Base Rate floors (but not the applicable ~~rate~~rate unless otherwise required to be adjusted pursuant to this Section 2.17(d)) applicable to the applicable existing ~~Term~~ Loans shall be increased to the extent of such differential between interest rate floors; , (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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); (vvi) any Incremental ~~Term~~ 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 ~~of the Term Loans~~hereunder, as specified in the applicable Incremental ~~Facility Agreement; (vi) any Incremental Commitments~~ Amendment 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) to the ~~proceeds of~~ extent the terms or provisions applicable to any Incremental ~~Facility shall be used for general corporate purposes, including~~ Loans are inconsistent with the terms and provisions applicable 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~~ then existing ~~Indebtedness~~ Loans (except to the extent permitted ~~hereunder, or for any other purpose not prohibited~~ by ~~this Agreement; and~~ clause (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 outstandingsi), (2ii), (v) ~~repayments required upon~~ or (vi) above or except for such terms and provisions applicable only to periods after 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~~Latest Maturity Date)~~) of Loans with respect to Incremental Revolving Commitments~~ , they shall be ~~made on a pro rata basis with all other Revolving Commitments on~~ reasonably acceptable to 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 ClassAdministrative Agent. (ce) ~~The~~ Incremental Commitments shall be ~~effected~~ documented pursuant to ~~one or more~~ an amendment (an “Incremental ~~Facility Agreements~~ Amendment”) to this Agreement and, as appropriate, amendments to the other Loan Documents to be included in the Incremental Amendment, executed ~~and delivered~~ by ~~the Parent,~~ the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent~~; provided that no~~ . The 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 Amendment may, without the consent of any other Loan Party, Agent or 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~~Agent and the Borrower, to ~~give~~ effect to the provisions of this ~~Section, including, without limitation, any amendments and/or supplements~~ Section 2.17 and the Lenders hereby irrevocably authorize the Administrative Agent to ~~the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation,~~ enter into amendments to this Agreement and the ~~Mortgages and datedown endorsements~~ other Loan Documents (to be included in the ~~title policies~~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 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 interests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans that are intended to be fungible ~~for United States federal income tax purposes~~ with ~~an existing Class of Term~~ 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~~. (f) Upon~~ . The Borrower will use the ~~effectiveness~~ proceeds of an the Incremental ~~Commitment of~~ Loans for any ~~Incremental Lender, such Incremental~~ purpose not prohibited by this Agreement. No Lender shall be ~~deemed~~ obligated 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. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and provide any Incremental ~~Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement~~Loans. (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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)

Incremental Facilities. (a) The Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent~~Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof,~~ “Incremental Revolving Credit Commitments”~~), (ii~~) and/or incur one or more new term loan commitments and/or increase the commitments of any Class of Term Loans (the ~~same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an~~ “Incremental Term ~~Facility~~Loan Commitments”; ) by an amount (1) not to exceed in the ~~commitments in respect thereof “Incremental Term Commitments” and together with~~ aggregate, at the time of incurrence, the Incremental ~~Revolving Commitments~~Available Amount referred to in clauses (a), ~~the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”;~~ (b) 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 (wc)(i) of the definition ~~of “Permitted Debt”.~~ 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 ~~ten (10)~~ 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 (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion); and (ii) the ~~amount~~ 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 ~~being requested (it being agreed that (x) any~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ 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 may be treated as part of the same Class as any other Incremental Term Loans if such Incremental ~~Commitment~~ 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 ~~Lender that fails~~ given Class, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans of such Class, in each case subject to ~~respond~~ the assignments contemplated by this Section. (d) Such Incremental Revolving Credit Commitments 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 ~~approach shall be deemed to have declined to provide such~~ Incremental ~~Commitment~~Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable and the ~~case~~ extensions of credit to be made thereunder on such date; provided that this clause (i)(x) may ~~be)~~ be waived or limited as agreed in the Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (y) ~~any Person that~~ the representations and warranties of the Borrower ~~proposes~~ 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 ~~become an Incremental Lender~~“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, ~~if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable~~ except in each case to the ~~Administrative Agent). (b) The terms~~ extent that such representations and ~~conditions of the Incremental Commitments and the Incremental Loans~~ warranties specifically refer to ~~be made thereunder~~ an earlier date, in which case they shall be ~~set forth in an Incremental Facility Agreement~~true and correct as of such earlier date); provided that, in ~~any event, (i) if~~ the ~~Weighted Average Yield applicable to any~~ case of Incremental Term Loans ~~issued on~~ incurred to finance a Permitted Acquisition or ~~prior~~ other Investment in the nature of an acquisition, this clause (i)(y) shall be limited to ~~the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement~~Sections 5.01(a), ~~as amended through the date of such calculation~~5.01(b), ~~with respect to Tranche B Term Loans~~5.02(a), 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 5.13, 5.17, 5.18, 5.19 (other than ~~a shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into~~ the first or required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter than the then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, second sentence thereof) 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 such differential between interest rate floors5.20; (ii) the ~~weighted average life to maturity of any~~ Incremental Revolving Credit Commitments or Incremental Term ~~Loans~~ Loan Commitments, as applicable, shall be ~~no shorter than~~ effected pursuant to one or more Joinder Agreements executed and delivered by the ~~remaining weighted average life~~ 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 ~~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 Tranche B Term Loans~~requirements set forth in Section 3.01); (iii) the Incremental Facilities shall be Guaranteed by the Guarantors, rank pari passu in right of security with the other Facilities and 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 “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit 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 terms of such Indebtedness shall not be more restrictive, taken as a whole, to the Borrower and the 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 (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 Weighted Average Life to Maturity of all Incremental Term 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 Incremental Term Loan Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which each Class shall be no earlier than the ~~initial Tranche B~~ Latest Maturity Date at the time of the incurrence of such Incremental Term ~~Maturity Date);~~ Loans, (iv) ~~(x)~~ the pricing of each Class of Incremental Term Loans may be subject to ~~clauses (ii)~~ “most favored nations” provisions if 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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ set forth in the Joinder Agreement 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);~~ Class and (v) ~~any~~ in the case of Incremental Term ~~Loans~~ Loans, such Indebtedness 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~~Loans hereunder, as specified in the applicable Joinder Agreement, and in the case of Incremental ~~Facility~~ Revolving Credit Commitments, such Incremental Revolving Credit Commitments may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory reductions of Revolving Credit Commitments hereunder, as specified in the applicable Joinder Agreement;. (vih) ~~any Incremental Commitments~~ The terms and ~~Incremental Loans shall, as elected by the Borrower, be equal or junior in right~~ provisions 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~~ Loans and Incremental Revolving ~~Loans~~ Credit Commitments shall be identical to the other Revolving ~~Commitments~~ Credit Loans of the Class being so increased and the Revolving ~~Loans, other than as to their Maturity Date and as set forth in this Section 2.21 (Incremental Facilities)~~Credit Commitments of the Class being so increased; provided ~~that, notwithstanding anything~~ that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the ~~contrary in this Section 2.21 (Incremental Facilities) or otherwise: (A) any~~ Revolving Credit Facility of the Class being so increased, 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 ~~Commitments or Incremental Revolving Loans shall rank pari passu in right of payment and of security with~~ Loan Lenders require a commitment fee on 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 undrawn portion of such Incremental Revolving ~~Commitments; (C) the borrowing~~ Loans 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~~ in excess of the ~~Incremental~~ commitment fee then applicable to the Revolving ~~Commitments and (3) repayment made in connection with a permanent repayment and termination~~ Credit Facility of ~~commitments (subject to clause (D) below))~~ the Class being so increased, the commitment fee on the Revolving Credit Facility of ~~Loans with respect to Incremental Revolving Commitments~~ such Class shall be ~~made on a pro rata basis with all other Revolving Commitments on~~ increased to equal such commitment fee without further consent of 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 Classaffected Lenders. (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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ Joinder Agreement may, without the consent of any ~~Lender~~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 ~~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~~ Section 2.14 (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 Borrower in connection with the establishment of such new tranches or sub-tranches, 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 ~~for United States federal income tax purposes~~ with ~~an existing Class of~~ such other Term Loans, which shall include any amendments that do modify the aggregate principal amount of scheduled installment payments to the extent such amendment does not ~~reduce~~ decrease the ~~ratable amortization~~ installment payment an existing Term Lender would have received ~~by each Lender thereunder~~prior to giving effect to any such amendment). (fj) ~~Upon the effectiveness of an Incremental Commitment of~~ This Section 2.14 shall supersede any ~~Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender~~ provisions 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 (~~Section 2.13 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 Commitments and Incremental Loans for all purposes of this Agreement. (g) Subject Section 10.01 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 Agreementcontrary. ~~(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 2.21(a) (Incrementa~~

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower Representative may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ Agent elect to request the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition establishment of one or more ~~new tranches~~ increases in Commitments of ~~term loans~~ any Class (~~each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitments,~~ the “Incremental Revolving Credit 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~~ by an aggregate amount not in excess of ~~all~~ the Maximum Incremental ~~Commitments~~ Facilities Amount at ~~any~~ 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 ~~not exceed~~ constitute the ~~Permitted~~ Maximum Incremental Facilities Amount ~~applicable to the Incremental Commitments~~ at such ~~time less the aggregate amount~~ time) and in a multiple of ~~Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~$100,000 in excess thereof. Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Credit Commitments shall be effective~~, which shall be~~ . The Borrower Representative may approach any Lender or any Person (other than a ~~date not less than ten (10~~natural Person) ~~Business Days (~~to provide all 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 (ii) the amount~~ a portion of the Incremental ~~Commitments being requested (it being agreed~~ Revolving Credit Commitments; provided that ~~(x)~~ any Lender offered or approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Revolving Credit Commitments may elect or decline, in its sole discretion, to provide ~~such~~ an Incremental ~~Commitment (~~Revolving Credit Commitment, and the Borrower Representative shall have no obligation to approach any ~~such~~ existing Lender ~~that fails to respond to such approach shall be deemed to have declined~~ to provide ~~such~~ 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) ~~and (y)~~ compensation for any ~~Person that the Borrower proposes to become an Incremental Lender, if~~ such ~~Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to~~ assistance by the Administrative ~~Agent).~~ Agent shall be mutually agreed by the Administrative Agent and Borrower Representative, (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 assistance shall be subject to the ~~Pari Passu Intercreditor Agreement and/or~~ 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 ~~Junior Lien Intercreditor Agreement~~applicable Increased Amount Date; provided that (i) (x) other than as described in the immediately succeeding clause (y), ~~as applicable);~~ no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Revolving Credit Commitments or (~~vii~~y) ~~the proceeds~~ 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 ~~Incremental Facility~~ Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under Section 12.1 or Section 12.5 shall ~~be used for general corporate purposes~~exist on such Increased Amount Date, 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~~ii) 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 Credit Commitments shall be effected pursuant to one or more ~~Incremental Facility~~ Joinder Agreements executed and delivered by the ~~Parent~~Borrower Representative and Administrative Agent, and each of which shall be recorded in the ~~Borrower~~Register and shall be subject to the requirements set forth in Section 6.4(e) and (iii) the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the Incremental Revolving Credit Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this 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 such increase. (b) 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 loan made (including, where applicable, a loan made by way of Banker’s Acceptances or BA Equivalent Notes) under an Incremental Revolving Credit Commitment (an “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, 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 Section 14.6(b) for an assignment of Incremental Revolving Credit Loans or Incremental Revolving Credit Commitments, as applicable, to such Incremental Revolving Loan Lender. (c) On any Increased Amount Date, each Lender in respect of the applicable Class of Commitments immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental 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 percentage of the aggregate outstanding participations hereunder in such Letters of Credit held by each Lender holding Revolving Loans (including each such Incremental Revolving Loan Lender), as applicable, 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; provided~~ 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 no 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 ~~become effective unless (i) except~~ purchase and assign at par such amounts of the Revolving Loans of such Class outstanding at such time as ~~otherwise agreed by~~ the Administrative Agent may require such that all of the Lenders ~~providing~~ effectively participate in each of the ~~relevant Incremental Facility~~ outstanding Revolving Loans of such Class on a pro rata basis of their Revolving Credit Commitment Percentages in ~~connection with any Limited Condition Acquisition (which shall be governed by clause (d) below), no Default or Event~~ respect of ~~Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and~~ such Class immediately after giving effect to all such ~~Incremental Commitments~~ assignments. The Administrative Agent and the ~~making of Incremental Loans thereunder to be made on such date~~Lenders hereby agree that the minimum borrowing, ~~(ii) except as otherwise agreed by the Lenders providing the relevant Incremental Facility~~ pro rata borrowing and pro rata payment requirements contained elsewhere in ~~connection with any Limited Condition Acquisition (which~~ this Agreement 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 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 not apply to the 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 have delivered or caused to have been delivered transactions effected pursuant to the Administrative Agent such 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 transactionimmediately preceding sentence. (d) ~~Notwithstanding the foregoing provisions of this Section 2.21 (~~Incremental ~~Facilities) or in any other provision of any Loan Document, if the proceeds of any~~ Revolving Credit Commitments and Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 Revolving Credit Loans shall be identical to the ~~Specified Representations (conformed as necessary to apply~~ Class of Commitments subject to such ~~Limited Condition Acquisition)~~ increase and the ~~Specified Acquisition Agreement Representations~~related Revolving Loans of such Class; ~~provided~~ provided, that underwriting, arrangement, upfront or similar fees that may be agreed to among the Borrower ~~will make all~~ Representative and the representations and 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 Lenders providing and/or arranging such Incremental ~~Loans on such closing date; (ii) after giving effect to such Incremental~~ Revolving Credit Commitments ~~and the making of Incremental Loans and other extensions of credit thereunder to~~ may 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent paid in connection with ~~any~~ such ~~transaction~~Incremental Revolving Credit Commitments. (e) Each ~~Incremental Facility~~ Joinder Agreement may, without the consent of any ~~Lender~~other Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the opinion of the Administrative ~~Agent~~Agent and the Borrower Representative, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.14. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)

Incremental Facilities. (a) ~~The Borrower may on~~ On one or more occasions at any time on or after the ~~Closing~~ Effective Date, the Borrower may by written notice to the Administrative ~~Agent, request: (i)~~ Agent elect to request an increase ~~in any Revolving Commitments~~ to the size of an existing Facility (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (eacheach such increase, a “Term Loan Increase”~~), or (iii~~) and/or the ~~addition~~ establishment of one or more ~~new tranches of~~ incremental term ~~loans~~ loan facilities (each, an “Incremental Term Loan; each Incremental Term Loan is referred to individually as an “Incremental Term Facility”; ~~the commitments in respect thereof “~~each Term Loan Increase and Incremental Term ~~Commitments” and together with the Incremental Revolving Commitments, the~~ Facility are collectively referred to as a “~~Incremental Commitments~~Commitment Increase”~~; 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 the Facilities as so increased, including all ~~the~~ such Incremental ~~Commitments~~ Term Facilities, does not exceed at any time $950,000,000; provided, that each such Commitment Increase shall ~~not exceed the Permitted Incremental Amount applicable to the Incremental Commitments at such time less the~~ be in an aggregate principal amount of ~~Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~not less than $10,000,000. Each such notice shall specify ~~(i)~~ the date on which the Borrower proposes that ~~the Incremental Commitments~~ such Commitment Increase shall be effective, which shall be a date not less than ~~ten~~ five (105) Business Days (or such ~~shorter period~~ lesser number of days as ~~may be agreed to by~~ the Administrative ~~Agent~~Agent shall agree) after the date on which such notice is delivered to the Administrative ~~Agent and (ii)~~ Agent. The Administrative Agent, the ~~amount~~ Arrangers, the Syndication Agents and/or their respective Affiliates shall use commercially reasonable efforts, with the assistance of the ~~Incremental Commitments being~~ Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested ~~(it being agreed~~ Commitment Increase; provided that (x) any Lender approached to provide all or a portion of any ~~Incremental~~ Commitment Increase may elect or decline, in its sole discretion, to ~~provide such Incremental~~ participate in a Commitment ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment~~Increase, ~~as the case may be)~~ and (y) any Lender or other Person that ~~the Borrower proposes to become an Incremental Lender, if such Person~~ is ~~not then a Lender, an Affiliate of a Lender or an Approved Fund must be~~ an Eligible Assignee ~~and must~~ to whom any portion of such Commitment Increase shall be ~~reasonably acceptable~~ allocated (each, an “Incremental Term Loan Lender”) shall be subject to the approval of the Borrower and the Administrative ~~Agent~~Agent (such approval not to be unreasonably withheld or delayed), to the extent required by Section 9.04(b). (b) The ~~terms~~ Administrative Agent and ~~conditions~~ 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 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 ~~Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event,~~following conditions precedent: (i) ~~if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months~~ after the Closing Date 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, then the Applicable Margin then in giving pro forma 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~~Commitment Increase and borrowings and the use of proceeds thereof, ~~which, subject to customary conditions, would either~~ no Event of Default shall exist and 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floorscontinuing; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into representations and warranties made or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 deemed made by the Borrower ~~and the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility~~ in any 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 Document shall be true and correct in all material respects on the Increased Amount Date of such Commitment Increase except to the extent 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 ~~prior~~ 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 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental CommitmentsTerm Facility, the conditions ~~precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following:~~ in clauses (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 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 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 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 ~~satisfied and (y)~~ on the ~~date of closing of such Limited Condition Acquisition and~~ same terms as the ~~funding~~ 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 ~~Loans~~Term Facility shall be, subject to Section 9.02(b)(iv) and clauses (~~A) no Event of Default under Section 7.01(b~~v), (cx) and (z) of the second proviso to Section 9.02(b), ~~(g) or (h) (Events of Default), shall have occurred~~ on terms agreed to by the Borrower and ~~be continuing and (B)~~ the ~~only representations and warranties the accuracy of which shall be a condition to funding~~ Lenders providing such Incremental ~~Loans shall be the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations~~Term Facility; provided that (i) if the Borrower will make all the representations and 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 terms of such Incremental ~~Loans~~ 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 on ~~such closing date;~~ terms reasonably acceptable to the Administrative Agent, and (ii) ~~after giving effect to such~~ all Incremental ~~Commitments and the making~~ Term Loans under each Incremental Term Facility shall rank pari passu in right of ~~Incremental~~ payment with all other Term Loans and shall be treated substantially the same as (and in any event no more favorably than) all other ~~extensions of credit thereunder to~~ Term Loans. Incremental Term Facilities may be made ~~on the date~~ hereunder pursuant to a supplement, an amendment or an amendment and restatement (an “Incremental Term Facility Amendment”) of ~~effectiveness thereof~~this Agreement and, as appropriate, the ~~Borrower shall be in compliance with~~ other Loan Documents, executed by the ~~Financial Covenants set forth in Section 6.12~~ Borrower, each Incremental Term Loan Lender (~~Financial Covenants~~including any Eligible Assignee becoming a party to this Agreement as an Incremental Term Loan Lender) with respect to ~~the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of~~ such Incremental ~~Commitments on a pro forma basis~~ Term Facility and ~~(iii)~~ the ~~Borrower shall have delivered or caused to have been delivered~~ Administrative Agent. Notwithstanding anything to the ~~Administrative Agent such customary legal opinions~~contrary in Section 9.02, ~~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~~ Amendment may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, 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 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, the Borrower shall have provided to such Lender or Eligible Assignee, and such Lender or Eligible Assignee shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act and the Beneficial Ownership Regulation, if applicable, in each case at least five (5) Business Days prior to such Increased Amount Date. (c) [Intentionally omitted]. (d) On any Increased Amount Date on which any Commitment Increase is effected, subject to the satisfaction of the foregoing terms and conditions and the conditions set forth in Section 4.02, each Incremental Term Loan Lender participating in such Commitment Increase shall make a Loan to the 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 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 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 give effect to such Incremental Term Facility and 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 AgreementSection 2.04. (h) ~~The Administrative Agent~~ This Section 2.04 shall ~~notify the Lenders promptly upon receipt by the Administrative Agent of~~ supersede any ~~notice from the Borrower referred to~~ provisions in Section ~~2.21(a~~2.18(c) ~~(Incrementa~~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 ~~may on~~ and/or any Additional Borrower and any one or more ~~occasions after~~ Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the ~~Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any~~ amount of their Incremental Term Loans or Revolving Commitments (~~each, a “~~any such increased Revolving ~~Commitment Increase” and the commitments in respect thereof~~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) ~~one or more new term loan commitments of~~ the ~~same Class as any outstanding Term Loan (each~~applicable Incremental Facility Closing Date, ~~a “Term Loan Increase”), or~~ (iii) the ~~addition~~ applicable Borrower(s) and (iv) in the case of ~~one or more new tranches of term loans (each, an “~~Incremental Term ~~Facility”;~~ Loans, (w) the ~~commitments in respect thereof “~~applicable Incremental Term ~~Commitments”~~ Maturity Date, (x) the amortization schedule for such Incremental Term Loans and ~~together with~~ (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, ~~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 principal amount of ~~all the~~ any Permitted Incremental ~~Commitments at any time~~ Equivalent Debt, 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~~ Cap; (wB) 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable with respect to any Incremental Term Loans ~~issued on~~ being incurred to finance a Permitted Acquisition designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or ~~prior to the date that~~ Event of Default has occurred and is ~~twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms~~ continuing as of ~~this Agreement, as amended through~~ the date of entry into the applicable acquisition, merger or similar agreement governing such ~~calculation~~acquisition or (y) otherwise, 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 then-remaining Weighted Average Yield as of the ~~Tranche B Term Loans); provided~~applicable Incremental Facility Activation Date, ~~that, if~~ immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving ~~Loans~~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 ~~applicable~~of any Incremental Facility Activation Date, ~~include~~ on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term ~~SOFR~~ 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) each of the representations and warranties made by any Loan Party in or ~~Alternate Base Rate floor~~ pursuant to the Loan Documents shall be true and correct in all material respects (except that any representation or warranty which is ~~greater than~~ 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, as of the ~~Term SOFR~~ date of execution and delivery of the applicable acquisition, merger or ~~Alternate Base Rate floor applicable to any existing Class of~~ similar agreement governing such acquisition (provided that, if agreed by the Lenders providing such Incremental Term Loans, ~~such differential between interest rate floors~~ the only representations and warranties that shall be ~~included~~ 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 ~~calculation~~ 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 ~~Weighted Average Yield for purposes~~ such earlier date)) or (y) otherwise, as of ~~this clause~~ the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the applicable Additional Credit Extension Amendment (iincluding the making of any Incremental Term Loans or Incremental Revolving Commitments (or Revolving Loans in respect thereof) pursuant thereto), ~~but only~~ in each case, unless stated to ~~the extent an increase~~ relate to a specific earlier date, in ~~the Term SOFR or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder~~which case, such representations and ~~in such case the Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans~~ warranties shall be ~~increased to the extent~~ true and correct in all material respects as of such ~~differential between interest rate floors~~earlier date; (iiE) the weighted average life to maturity of any Incremental Term ~~Loans~~ Facility (other than the Specified Incremental Loans) shall be no ~~shorter~~ earlier 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 ~~Tranche B~~ Initial Term ~~Loans)~~Facility; (~~iii~~F) ~~no Incremental Maturity Date of any~~ all Incremental Term ~~Facility~~ 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 earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date)a Person that is not a Loan Party; (ivG) ~~(x) subject~~ except with respect to ~~clauses (ii)~~ pricing and ~~(iii) above~~fees or as otherwise set forth in this Section 2.25(a), 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 ~~other~~ terms of any Incremental Term Facility, if not consistent with the ~~terms~~ 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 ~~Tranche B~~ 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 Amendment and Restatement Effective Date; and (J) no Lender shall have any obligation to participate in any ~~material respect~~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 (~~except for covenants and terms that apply solely~~ ii) shall become a Lender under this Agreement pursuant to ~~any period after~~ an Additional Credit Extension Amendment. (c) Unless otherwise agreed by the ~~latest Maturity~~ Administrative Agent, on each Incremental Facility Closing Date ~~that is~~ with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in ~~effect~~ 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, of each Eurocurrency Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurocurrency Tranche had been borrowed or effected by such Borrower on ~~the effective date of~~ such Incremental Facility ~~Agreement~~Closing Date and (ii) ~~(it being understood that~~ the aggregate amount of each such Type or Eurocurrency Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the ~~extent any financial maintenance covenant is added for~~ preceding sentence shall equal the ~~benefit~~ Eurocurrency Rate then applicable to the Eurocurrency Loans of ~~any Incremental Term Loans or any Incremental Term Commitments~~the other Lenders in the same Eurocurrency Tranche (or, ~~no consent~~ until the expiration of the then-current Interest Period, such other rate as shall be ~~required from~~ agreed upon between the ~~Administrative Agent or any of~~ Parent Borrower and 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 Agreementrelevant Lender);. (vd) 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 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)Agreement, ~~(2) repayments required upon the maturity date~~ each 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 parties hereto hereby agrees that, on ~~a pro rata basis with all other Revolving Commitments on the~~ each Incremental Facility Closing Date~~; and (D) the permanent repayment of Revolving Loans with respect to~~, ~~and termination of, Incremental Revolving Commitments~~ this Agreement 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, amended to the extent ~~agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent~~ (but only to the ~~Borrower’s right~~ extent) necessary to ~~request such Incremental Commitments for a Limited Condition Acquisition shall be limited to~~ reflect the ~~following: (i) (x) on the date of execution~~ existence and terms of the ~~definitive documentation with respect to~~ Incremental Term Loans or Revolving Commitments evidenced thereby. Any 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 amendment may be ~~necessary or appropriate,~~ effected in 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 writing by the Administrative Agent and the Parent Borrower ~~in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse~~ and furnished to the interests 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 thereunderother parties hereto. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative ~~Agent~~Agent and with the consent of the Administrative Agent and the Incremental Lenders, ~~request:~~ request (i) ~~an increase in~~ during the 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 Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 principal amount of all the Incremental Commitments ~~at any time~~ established hereunder shall not exceed $500,000,000 (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~~Committed Amount”). Each such notice shall specify (iA) 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 ~~ten (10)~~ 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 (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible ~~Assignee and must be reasonably acceptable to the Administrative Agent~~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 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 an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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; ; provided that (vii) no Incremental Term Maturity Date shall be earlier than, and no Incremental Term Loans shall require any ~~Incremental Commitments and Incremental Loans shall, as elected by the Borrower, be equal~~ repayment or ~~junior~~ prepayment of any principal amount thereof (other than amortization payments not in ~~right~~ excess of ~~payment with any remaining portion~~ 1% per annum of the ~~Facilities and~~initial principal amount of such Incremental Term Loans) prior to, ~~with respect to security with any remaining portion of~~ the ~~Facilities~~Revolving Maturity Date, ~~pari passu, junior or unsecured and~~ (ii) Incremental Term Loans shall not ~~be secured by any assets other than~~ have 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 benefit 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, guarantees or ~~for any other purpose~~ collateral that do not ~~prohibited by this Agreement; and (viii) the Incremental Revolving Commitments and Incremental Revolving Loans shall be identical to~~ equally benefit 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~~ (iii) Incremental Term ~~Loans; (B) any such Incremental Revolving Commitments or Incremental Revolving~~ Loans shall not ~~mature earlier than~~ have the ~~latest Maturity Date~~ benefit of any ~~Revolving~~ 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 ~~outstanding at the time~~ made thereunder, shall be designated as a separate series (each a “Series”) 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 Term Commitments and ~~(3) repayment made in connection with a permanent repayment and termination~~ Incremental Term Loans for all purposes 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 Classthis Credit Agreement. (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 and issuance of Letters of Credit 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 of the Borrower set forth in ~~Article III and in~~ the ~~other Loan~~ 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,~~ 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, (iii) 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 pro forma compliance with the ~~Financial Covenants~~ financial covenant 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 Commitments on a pro forma basis and~~ 7.2, (iv) 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 or caused to have been~~ delivered to the Administrative Agent such ~~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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 Credit Agreement and the other ~~Loan~~ Credit 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) 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~~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~~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~~class) hereunder and under the other ~~Loan~~ Credit Documents~~. Any~~ , and (ii) in the case of any Incremental ~~Commitments established pursuant to~~ Revolving Commitment, (A) in the case of an Incremental ~~Facility Agreement~~ Lender that does not already have ~~identical terms~~ a Revolving Commitment, such Incremental Revolving Commitment shall constitute the Revolving Commitment of such Incremental Lender and ~~conditions~~(B) in the case of an Incremental Lender that already has a Revolving Commitment, the Revolving Commitment of such Incremental Lender 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 Incremental Revolving Commitment, and ~~any Incremental Loans made thereunder~~the Revolving Loan Commitment Percentages of all the Revolving Lenders, shall automatically be ~~designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement~~adjusted to give effect thereto. (ge) 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. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in this Section ~~2.21(a) (Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Revolving Loan Commitment Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.7(e).

Appears in 2 contracts

Sources: Credit Agreement (Quest Diagnostics Inc), Credit Agreement (Quest Diagnostics Inc)

Incremental Facilities. (a) The Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent~~Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof,~~ “Incremental Revolving Credit Commitments”~~), (ii~~) and/or increase the existing Initial Term Commitments or incur one or more new term loan commitments of (the ~~same Class as any outstanding~~ “Incremental Term Loan ~~(each, a “Term Loan Increase~~Commitments”), or by an amount (~~iii~~1) not to exceed in the ~~addition~~ aggregate, at the time of ~~one or more new tranches of term loans~~ incurrence, the Incremental Available Amount and (~~each~~2) not less than, ~~an “~~individually, $25,000,000. All Incremental Term ~~Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving~~ Loan Commitments, ~~the “Incremental Commitments”; the loans made pursuant to such commitments, “~~Incremental Term Loans”; , Incremental Revolving 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~~ Credit 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~~ be in Dollars. (wb) ~~of the definition of “Permitted Debt”.~~ 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 ten (10) Business Days ~~(or such shorter period as may be agreed to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) and (ii) the ~~amount~~ 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 ~~being requested (it being agreed that (x) any~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ 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 may be treated as part of the same Class as any other Incremental Term Loans if such Incremental ~~Commitment~~ 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 given Class, the respective interests in such ~~Lender that fails~~ Revolving Credit L▇▇▇▇▇’s Revolving Credit Loans of such Class, in each case subject to ~~respond~~ the assignments contemplated by this Section. (d) Such Incremental Revolving Credit Commitments 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 ~~approach~~ Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable and the extensions of credit to be made thereunder on such date; provided that, in the case of Incremental Term Loans incurred to finance a Permitted Acquisition, this clause (i)(x) may be limited as agreed in the Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders to require that no Default or Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall ~~be deemed~~ exist before or after giving effect to ~~have declined to provide~~ such Incremental ~~Commitment, as the case may be)~~ Term Loans 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 Term Loans incurred to finance a Permitted Acquisition, this clause (i)(y) shall be limited to the Specified Representations; (ii) with regard to the incurrence of any additional Class of Incremental Term Loans incurred prior to the first anniversary of the Closing Date pursuant to this Section 2.14 that is in an aggregate principal amount at the time of such incurrence in excess of $50,000,000, the yield applicable to each such additional Class of Incremental Term Loans shall be determined by the Borrower and the applicable lenders under such additional Class of Incremental Term Loans as set forth in the applicable Joinder Agreement; provided that the Effective Yield applicable to such additional Class of Incremental Term Loans will not be more than fifty (50) basis points greater than the Effective Yield for any outstanding Term Loans unless the interest rate margin with respect to such Term Loans is increased by an amount equal to the difference between the Effective Yield with respect to such additional Class of Incremental Term Loans less fifty (50) basis points and the Effective Yield for such Term Loans (the “MFN Protection”); (iii) 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); (iv) the Incremental Facilities shall be Guaranteed by the Guarantors (and shall not be Guaranteed by any Person ~~that~~ other than the Guarantors) and rank pari passu in right of security with the other Facilities (and shall not be secured by any assets other than the Collateral); (v) 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 (vi) the Borrower ~~proposes~~ 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 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 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 “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan of the Class being so increased and (iii) each Incremental Revolving Loan Lender shall become ~~an Incremental Lender, if such Person is not then a Lender, an Affiliate of~~ 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 ~~Approved Fund must be~~ “Incremental Term Loan”) in an ~~Eligible Assignee~~ amount equal to its Incremental Term Loan Commitment of such Class or increase and ~~must be~~ (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, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions) and conditions of the Incremental Term Loans and Incremental Term Loan Commitments shall be, except as otherwise explicitly set forth herein, (x) 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 and (y) reasonably acceptable to the Administrative Agent). ; provided that (bi) ~~The~~ the terms of such Incremental Term Loans and ~~conditions of~~ Incremental Term Loan Commitments shall not be more restrictive, taken as a whole, to the ~~Incremental Commitments~~ Borrower and the ~~Incremental Loans to be made thereunder shall be~~ other Loan Parties than those set forth in ~~an Incremental Facility Agreement; provided that, in any event,~~ this Agreement prior to the execution of such Joinder Agreement unless (ix) if such terms apply only after the ~~Weighted Average Yield applicable to any~~ Latest Maturity Date at the time such Incremental Term Loans ~~issued on~~ and Incremental Term Loan Commitments is established or ~~prior~~ (y) this Agreement is amended so that such terms as are beneficial to the ~~date that is twelve (12) months after~~ Lenders are also applicable for the ~~Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms~~ benefit of this Agreement, as amended through the date of 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 any Lenders under any then-~~remaining Weighted Average Yield of the Tranche B Term Loans); provided~~existing Facilities, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~any~~ all Incremental Term Loans shall be no shorter than the ~~remaining weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of any other Term Loans at the time of the ~~Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity~~ incurrence of ~~the Tranche B~~ such Incremental Term Loans); , (iii) no the applicable Incremental Term Loan Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which each Class shall be no ~~earlier~~ shorter than the ~~initial Tranche B~~ Latest Maturity Date at the time of the incurrence of such Incremental Term ~~Maturity Date);~~ Loans and (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~Loans hereunder, as specified in the applicable ~~Incremental Facility~~ Joinder Agreement;. (vih) ~~any Incremental Commitments~~ The terms and ~~Incremental Loans shall, as elected by the Borrower, be equal or junior in right~~ provisions 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~~ Loans and Incremental Revolving ~~Loans~~ Credit Commitments shall be identical to the other Revolving ~~Commitments~~ Credit Loans of the Class being so increased and the Revolving ~~Loans, other than as to their Maturity Date and as set forth in this Section 2.21 (Incremental Facilities)~~Credit Commitments of the Class being so increased; 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 that if the Incremental Revolving ~~Commitments and (3) repayment made~~ Loan Lenders require an interest rate in ~~connection with a permanent repayment and termination~~ excess of ~~commitments (subject~~ the interest rate then applicable to ~~clause (D) below))~~ the Revolving Credit Facility of ~~Loans with respect to Incremental~~ the Class being so increased, the interest rate on the Revolving ~~Commitments~~ Credit Facility of such Class shall be ~~made on a pro rata basis with all other Revolving Commitments on~~ increased to equal such required rate without further consent of 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 Classaffected Lenders. (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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ Joinder Agreement may, without the consent of any ~~Lender~~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 ~~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~~ Section 2.14 (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 Borrower in connection with the establishment of such new tranches or sub-tranches, 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 ~~for United States federal income tax purposes~~ with ~~an existing Class of~~ such other Term Loans, which shall include any amendments that do modify the aggregate principal amount of scheduled installment payments to the extent such amendment does not ~~reduce~~ decrease the ~~ratable amortization~~ installment payment an existing Term Lender would have received ~~by each Lender thereunder~~prior to giving effect to any such amendment). (fj) ~~Upon the effectiveness of an Incremental Commitment of~~ This Section 2.14 shall supersede any ~~Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender~~ provisions 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 (~~Section 2.13 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 Commitments and Incremental Loans for all purposes of this Agreement. (g) Subject Section 10.01 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 Agreementcontrary. ~~(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 2.21(a) (Incrementa~~

Appears in 2 contracts

Sources: Credit Agreement (Yesway, Inc.), Credit Agreement (Yesway, Inc.)

Incremental Facilities. ~~(a)~~ The Borrower ~~may on one or more occasions after the Closing Date~~may, by written notice to the Administrative ~~Agent~~Agent from time to time during the Incremental Availability Period, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ request the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition establishment of one or more ~~new tranches~~ incremental term loan facilities, for the purposes of ~~term loans (each~~funding a Permitted Subsequent Funding Use, in an ~~“Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with~~ aggregate principal amount not to exceed the Incremental ~~Revolving Commitments,~~ Facility Amount to be documented as an increase in the ~~“Incremental Commitments”;~~ total amount of 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”)Loans under this Agreement; 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~~ there shall not be more than three incremental term loan facilities per calendar year and (ii) each incremental term loan facility shall be ~~effective~~in a minimum amount of $10,000,000, ~~which shall be a date not less than ten (10) Business Days (or such shorter period as may be~~ in each case, unless otherwise agreed to by the Lenders. Each Lender shall participate in such incremental term loan facilities if each of the following conditions have been satisfied: (a) to the extent that the proceeds of such incremental term loan facility are to be used to finance an Additional Covered Project, (w) such Additional Covered Project shall have been approved by the Lenders in their sole discretion, (x) the applicable Restricted Project Company and the Administrative ~~Agent~~Agent shall have agreed in writing that such Restricted Project Company shall be an Additional Covered Project Company hereunder, (y) ~~after~~ the ~~date on which~~ Borrower or the applicable Additional Project Company shall have entered into Project Documents in respect of such ~~notice is delivered~~ Additional Covered Project in form and substance acceptable to the Administrative Agent ~~and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline,~~ in its sole discretion, and (z) the Borrower and the Administrative Agent shall have agreed in writing as to ~~provide such Incremental Commitment (and any such Lender that fails to respond~~ the Project Payoff Amount with respect 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent).Additional Covered Project; (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 exists as of the effective date of such incremental term loan facilities or would exist after giving effect thereto; (c) no development, event or circumstance that has had or could reasonably be expected to have a Material Adverse Effect shall have occurred and be ~~continuing on~~ continuing, or shall occur as a result thereof as of the effective 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 incremental term loan facilities; (d) ~~below), on the date of effectiveness thereof,~~ the representations and warranties of each Loan Party set forth in ~~Article III and in~~ the ~~other Loan~~ Financing 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 on and as of ~~such prior date, (iii) after giving effect to such Incremental Commitments and~~ the ~~making of Incremental Loans and other extensions of credit thereunder to be made on the~~ effective date of ~~effectiveness thereof~~such incremental term loan facilities (except where already qualified by materiality or Material Adverse Effect, in which case, in all respects); (e) the ~~Borrower~~ Lenders shall ~~be in compliance with~~ have received Investment Committee approval for such incremental term loan facilities; (f) the ~~Financial Covenants~~ other applicable conditions set forth in Section ~~6.12 (Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended~~ 4.04 shall have been satisfied as of the effective date of ~~effectiveness of~~ such ~~Incremental Commitments on a pro forma basis and~~ incremental term loan facilities; and (ivg) the ~~Borrower~~ terms of any such incremental facility shall ~~have delivered or caused~~ be identical to ~~have been delivered to~~ those of the ~~Administrative Agent such customary legal opinions~~existing Loans, ~~board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested~~ unless otherwise agreed by the Administrative Agent in and the Lenders. For the avoidance of doubt, no Lender shall be required to fund any incremental term loan facility under this Section 2.13 unless each of the foregoing conditions shall have been satisfied and the Lenders shall have otherwise approved such incremental term loan facility. In connection with any such ~~transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document~~incremental term loan facility, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ Financing Documents shall be amended as ~~may~~ necessary to effectuate such increase, such amendments to be ~~necessary or appropriate, in the opinion of the Administrative Agent, to give effect~~ acceptable to the ~~provisions of this Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral~~ Lenders 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 Borrower~~ in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereundertheir reasonable discretion. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 2 contracts

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

Incremental Facilities. (a) The Initial Borrower may ~~on one or more occasions after~~ from time to time with the ~~Closing Date~~consent of the Required Lenders, increase the aggregate amount of the Commitments by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more requesting new delayed draw term loan commitments ~~of the same Class as~~ to provide Delayed Draw Term Loans (any ~~outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~such increase, 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, or the “Incremental Facilities”~~); provided that the~~ ) by an aggregate amount not in excess of ~~all~~ the Incremental ~~Commitments~~ Cap, tested at ~~any~~ the 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”~~incurrence thereof. ~~Each such notice shall specify~~ The Initial Borrower may invite (i) ~~the date on which the Borrower proposes that the Incremental Commitments shall be effective~~any Lender, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and any Affiliate of any Lender and/or any Approved Fund and/or (ii) ~~the amount~~ any other Person to provide all or a portion of the Incremental Commitments ~~being requested~~ (~~it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and~~ any such ~~Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment~~Person, ~~as the case may be) and (y) any Person that the Borrower proposes to become~~ an “Incremental Lender~~, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent~~”). (b) Any Incremental Facility shall be effected pursuant to an Incremental Facility Amendment executed and delivered by the Administrative Agent, the Initial Borrower, the applicable Additional Borrower designated to be Initial Borrower in respect of such Incremental Facility, the Required Lenders and the applicable Incremental Lenders, which Incremental Facility US-DOCS\165060996.55168397633.10 Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Initial Borrower, to effect the provisions of this Section 2.22 (it being agreed and understood that the terms applicable to any Incremental Facility incurred hereunder shall be substantially similar to the terms applicable to the then-existing Commitments). The Lenders hereby irrevocably authorize and direct the Administrative Agent to enter into any Incremental Facility Amendment and any amendment to any of the other Loan Documents with the Borrowers, as may be necessary to effectuate the increase or extended to Delayed Draw Term Loans or Delayed Draw Term Loan Commitments pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Initial Borrower in (which may include amending and restating the Loan Documents), in each case on terms consistent with this Section 2.22; it being acknowledged and ~~conditions~~ agreed by each Lender that the Administrative Agent, in its capacity as such shall have no liability with respect to such amendments and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such amendments. (c) The effectiveness of any Incremental Facility shall be conditioned upon (i) delivery by the Parent Guarantor of an executed amendment to the existing Parent Guarantee or a new guarantee in substance and form reasonably satisfactory the Incremental Lenders; and (ii) no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments and any related transactions. (d) On the effective date of any Incremental Commitment, each Incremental Lender that has agreed to provide such Incremental Commitment shall become a Lender hereunder. (e) The terms, provisions and documentation of the Incremental Loans and Incremental Commitments shall be as agreed between the Initial Borrower and the applicable Incremental ~~Loans~~ Lenders providing such Incremental Commitments (including, for the avoidance of doubt, that the Incremental Lenders and/or the Administrative Agent may require certain fees be paid in connection with the provision of such Incremental Commitments and/or the execution of such Incremental Facility Amendment); provided that to ~~be made thereunder~~ the extent any covenants and events of default of any Incremental Commitment are more favorable (with respect to the lenders thereunder) than the comparable terms hereunder (with respect to the Lenders under the Delayed Draw Term Loan Facility), the Lenders hereunder shall be ~~set forth in an Incremental Facility Agreement; provided that, in~~ entitled to such terms with respect to the applicable facilities hereunder. In any event,, any Incremental Loans: (i) shall not mature earlier than the Term Maturity Date at the time of incurrence of such Incremental Loans; (ii) shall have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of Delayed Draw Term Loans outstanding at the time of incurrence of such Incremental Loans; (iii) subject to the foregoing, shall be subject to an amortization schedule and All-In Yield determined by the Initial Borrower and the applicable Incremental Lenders and set forth in each applicable Incremental Facility Amendment; provided, however, that if the ~~Weighted Average~~ All-In Yield applicable to ~~any~~ such Incremental ~~Term~~ Loans ~~issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more~~ shall be greater than ~~0.50% per annum~~ the applicable ~~Weighted Average~~ All-In Yield payable pursuant to the terms of this ~~Agreement,~~ Agreement as amended through the date of such ~~calculation,~~ calculation with respect to ~~Tranche B~~ Delayed Draw Term ~~Loans~~Loans by more than 50 basis points per annum (the amount of such excess, the “Yield Differential”), then the ~~Applicable Margin then~~ interest rate (together with, as provided in ~~effect for Tranche B~~ the proviso below, the US-DOCS\165060996.55168397633.10 Term ~~Loans shall automatically be increased to a level such that the Weighted Average Yield~~ SOFR or Base Rate floor) with respect to the ~~Tranche B~~ Delayed Draw Term Loans ~~is 0.50% per annum below~~ shall be increased by the ~~Weighted Average~~ applicable 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 then-remaining Weighted Average Yield of the Tranche B Term Loans)Differential; provided, further, that, if any Incremental ~~Term~~ Loans ~~or Incremental Revolving Loans, 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~~ All-In Yield for purposes of this clause (iiii), but only to the extent an increase in the Term SOFR or ~~Alternate~~ Base Rate floor applicable to the existing Delayed Draw Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Term SOFR ~~or Alternate~~ and Base Rate floors (but not the applicable rate) applicable to the existing Delayed Draw Term Loans shall be increased to the extent of such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv~~) (x~~) subject to clauses (i), (ii) and (iii) above, ~~the pricing, interest~~ shall have an applicable rate ~~margins, discounts, premiums, rate floors, fees~~ and ~~the~~ amortization ~~schedule applicable to any Incremental Facility shall be~~ determined by the Borrower and the applicable Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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)Lenders; (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~~ and shall not be 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 entity other than a Guarantor 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 AgreementInitial Borrower; and (~~viii~~vi) shall not be established or drawn until after the ~~Incremental Revolving~~ Initial Delayed Draw Term Loan 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~~ have been drawn in ~~this Section 2.21 (Incremental Facilities); provided that, notwithstanding~~ full or terminated. Notwithstanding anything to the ~~contrary in this Section 2.21~~ contrary, the establishment of any Incremental Loans (~~Incremental Facilities~~i) will not impact the amortization 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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~~ Delayed Draw Term Loans, which shall ~~include any amendments that do not reduce~~ in each case, continue to be determined as in effect immediately prior to the ~~ratable amortization received by each Lender thereunder. (f) Upon the effectiveness~~ establishment of ~~an Incremental Commitment of any Incremental Lender,~~ such Incremental ~~Lender~~ Loans and (ii) shall be ~~deemed to be~~ under a ~~“Lender” (and a Lender in respect of Commitments and Loans of~~ different tranche than 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. 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 Commitments and Incremental Loans for all purposes of this Agreementinitial Delayed Draw Term Loans. (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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Credit Agreement (NSCALE LTD), Credit Agreement (NSCALE LTD)

Incremental Facilities. (a) The Borrower ~~may~~ may, at any time, on one or more occasions ~~after the Closing Date, by written notice~~ pursuant to ~~the Administrative Agent, request: (i)~~ an ~~increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “~~Incremental ~~Revolving Commitments”), (ii)~~ Facility Amendment add one or more new Classes of term ~~loan commitments~~ facilities and/or increase the principal amount of the ~~same~~ Term Loans of any existing Class as by requesting new commitments to provide such Term Loans (any ~~outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one~~ such new Class or ~~more new tranches of term loans (each~~increase, an “Incremental ~~Term~~ Facility~~”; the commitments in respect thereof “Incremental Term Commitments~~” and ~~together with the Incremental Revolving Commitments, the “Incremental Commitments”; the~~ any loans made pursuant to ~~such commitments~~an Incremental Facility, “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 that: (i) ~~the date on which the Borrower proposes~~ no Incremental Commitment in respect of any Incremental Facility may be in an amount that ~~the Incremental Commitments shall be effective, which shall be a date not~~ is less than ~~ten (10) Business Days~~ $5,000,000 (or such ~~shorter period as may be agreed~~ lesser amount to ~~by the Administrative Agent) after the date on~~ which ~~such notice is delivered to~~ the Administrative Agent ~~and~~ may reasonably agree); (ii) except as the ~~amount~~ Borrower and any Lender may separately agree, 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 ~~the Incremental Commitments being requested~~ such Lender (it being agreed that ~~(x)~~ the Borrower shall not be obligated to offer the opportunity to any Lender ~~approached~~ to ~~provide~~ participate in any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term LoansFacility); (iii) no Incremental ~~Maturity Date~~ Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term ~~Facility shall~~ Loan; (iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be ~~earlier~~ materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the ~~initial Tranche B Term Maturity Date~~ Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing 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 Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); (v) solely with respect to any Incremental Term Loans that are pari passu with the Initial Term Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Initial Term Loan due to the application or imposition of an ~~earlier~~ Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO Rate floor applicable to such Initial Term Loan; (vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date ~~for customary bridge financings, which, subject~~ with respect to ~~customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which~~ any Incremental Term Loans shall be no earlier than the ~~initial Tranche B~~ Initial Term Loan Maturity Date); (~~iv) (x~~vii) subject to ~~clauses~~ the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (iixiv) ~~and (iii) above~~below, the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable~~ Weighted Average Life to Maturity of any Incremental Facility shall be ~~determined by~~ no shorter than the ~~Borrower and the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms~~ remaining Weighted Average Life to Maturity of the ~~Tranche B~~ Initial Term Facility in any 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 Loans on the ~~effective~~ date of incurrence of such Incremental Facility ~~Agreement)~~ (~~it being understood that~~ without giving effect 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~~ prepayments of the ~~Lenders to the extent that such financial maintenance covenant is also added for the benefit of any Tranche B~~ Initial Term ~~Loans remaining outstanding after the effectiveness of such Incremental Facility Agreement~~Loans); (vviii) [reserved]; (ix) [reserved]; (A) any Incremental ~~Term Loans may participate on a pro rata basis or less than pro rata basis~~ Facility (~~but not on a greater than pro rata basis~~x) 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 shall rank pari passu or junior in right of payment with any ~~remaining portion~~ then-existing Class of ~~the Facilities and, with respect to security with any remaining portion of the Facilities, pari passu, junior or unsecured~~ Term Loans 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~~ y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the ~~Facilities with respect to security~~ extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to ~~the Pari Passu Intercreditor Agreement and/or the Junior Lien~~ an Acceptable Intercreditor Agreement~~, as applicable)~~) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral; (~~vii~~xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis, greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any ~~Incremental Facility shall be used for general corporate purposes~~Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, ~~including to finance growth Capital Expenditures~~in each case, ~~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~~provided in such Sections; (~~viii~~xii) 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)~~ 2.22 or ~~otherwise:~~ in any other provision of any Loan Document, (A) ~~any~~ after giving effect to the funding of such Incremental ~~Revolving Commitments or Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Loans~~ Facility and the ~~Term Loans;~~ application of the proceeds thereof, the Borrower shall be in pro forma compliance with each of the Financial Covenants and the Total Debt to Equity Ratio would not exceed 3.00 to 1.00; (B) ~~any such Incremental Revolving Commitments or Incremental Revolving Loans shall not mature earlier than~~ no Event of Default (or, if the ~~latest Maturity Date~~ proceeds 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 Facility are incurred in connection with a ~~permanent repayment and termination~~ Limited Condition Transaction, no Event of ~~commitments~~ Default under Section 7.01(a), (~~subject to clause~~ f) or (Dg) ~~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~~only) 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 such date and (C) 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 Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or establishment of such Incremental Facility; provided that (AI) 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~~ Specified Representation which expressly relates to a ~~prior date~~given date or period, ~~in which case~~ such representation and warranty shall be true and correct in all material respects as of ~~such prior date~~the respective date or for the respective period, as the case may be, (~~iii~~II) ~~after giving effect~~ if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such ~~Incremental Commitments~~ Specified Representation shall be true and ~~the making of Incremental Loans~~ correct in all respects and ~~other extensions of credit thereunder~~ (III) Section 3.14 shall not apply to Collateral that is not required to be ~~made~~ created or perfected on or prior to the date of ~~effectiveness thereof~~initial funding of such Incremental Facility; provided, ~~the Borrower shall be in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants)~~ further, that with respect to any Limited Condition Transaction, except as set forth above, any other conditions may be satisfied on the 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 have delivered or caused to have been delivered to the Administrative Agent such 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.LCT Test Date; (dxiii) ~~Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if~~ the proceeds of any Incremental Facility ~~are intended to~~ may be ~~applied to finance a Limited Condition Acquisition~~used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, ~~to the extent agreed~~ acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: this Agreement; and (~~i) (x~~xiv) on the date of ~~execution~~ the Borrowing of any Incremental Term Loans that will be of the ~~definitive documentation with respect~~ same Class as any then-existing Class of Term Loans, and notwithstanding anything to ~~such Limited Condition Acquisition, all~~ the ~~requirements~~ contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (~~c)(i~~a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO Rate Loans of the relevant Class and which end on the last day of such Interest Period. (b) Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) 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 the relevant Incremental Commitments and related Obligations had been acquired 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 Amendment) 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 conditions precedent to the effectiveness of any Incremental Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Facility or Incremental Term Loans, (iv) the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other item not consistent with this Section 2.22) and (iiv) ~~above~~ the Administrative Agent shall be ~~satisfied and (y) on the date of closing of such Limited Condition Acquisition and the funding~~ entitled to receive a certificate of the ~~applicable Incremental Loans,~~ Borrower signed by a Responsible Officer thereof; (A) ~~no Event~~ certifying and attaching a copy of ~~Default under Section 7.01(b)~~the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, and (c)B) to the extent applicable, certifying that the conditions set forth in subclauses (gA) ~~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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 (Ba)(xii) 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have above has been delivered to the Administrative Agent such 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 transactionsatisfied. (e) ~~Each~~ The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility ~~Agreement may, without the consent of~~ Amendment and/or any ~~Lender, effect such amendments~~ amendment to ~~this Agreement and the~~ any other Loan ~~Documents~~ Document as may be necessary in order to establish new Classes or ~~appropriate,~~ sub-Classes in ~~the opinion~~ respect of ~~the Administrative Agent,~~ Loans or commitments pursuant 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) Section 2.22 and such ~~technical~~ technical, mechanical and conforming 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~~ Classes or sub-~~tranches~~Classes, including any amendments that are not adverse to the interests 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 in each case on terms consistent with ~~an existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder~~this Section 2.22. (f) ~~Upon the effectiveness of an Incremental Commitment of~~ This Section 2.22 shall supersede any ~~Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender~~ provision 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 (~~Section 2.18 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 Commitments and Incremental Loans for all purposes of this Agreement. (g) Subject 9.02 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 Agreementcontrary. ~~(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 2.21(a) (Incrementa~~

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)

Incremental Facilities. (a) The Initial Borrower may ~~on one or more occasions after~~ from time to time with the ~~Closing Date~~consent of the Required Lenders, increase the aggregate amount of the Commitments by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more requesting new delayed draw term loan commitments ~~of the same Class as~~ to provide Delayed Draw Term Loans (any ~~outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~such increase, 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, or the “Incremental Facilities”~~); provided that the~~ ) by an aggregate amount not in excess of ~~all~~ the Incremental ~~Commitments~~ Cap, tested at ~~any~~ the 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”~~incurrence thereof. ~~Each such notice shall specify~~ The Initial Borrower may invite (i) ~~the date on which the Borrower proposes that the Incremental Commitments shall be effective~~any Lender, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and any Affiliate of any Lender and/or any Approved Fund and/or (ii) ~~the amount~~ any other Person to provide all or a portion of the Incremental Commitments ~~being requested~~ (~~it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and~~ any such ~~Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment~~Person, ~~as the case may be) and (y) any Person that the Borrower proposes to become~~ an “Incremental Lender~~, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent~~”). (b) Any Incremental Facility shall be effected pursuant to an Incremental Facility Amendment executed and delivered by the Administrative Agent, the Initial Borrower, the applicable Additional Borrower designated to be Initial Borrower in respect of such Incremental Facility, the Required Lenders and the applicable Incremental Lenders, which Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Initial Borrower, to effect the provisions of this Section 2.22 (it being agreed and understood that the terms applicable to any Incremental Facility incurred hereunder shall be substantially similar to the terms applicable to the then-existing Commitments). The Lenders hereby irrevocably authorize and direct the Administrative Agent to enter into any Incremental Facility Amendment and any amendment to any of the other Loan Documents with the Borrowers, as may be necessary to effectuate the increase or extended to Delayed Draw Term Loans or Delayed Draw Term Loan Commitments pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Initial Borrower in (which may include amending and restating the Loan Documents), in each case on terms consistent with this Section 2.22; it being acknowledged and ~~conditions~~ agreed by each Lender that the Administrative Agent, in its capacity as such shall have no liability with respect to such amendments and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such amendments. (c) The effectiveness of any Incremental Facility shall be conditioned upon (i) delivery by the Parent Guarantor of an executed amendment to the existing Parent Guarantee or a new guarantee in substance and form reasonably satisfactory the Incremental Lenders; and (ii) no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments and any related transactions. (d) On the effective date of any Incremental Commitment, each Incremental Lender that has agreed to provide such Incremental Commitment shall become a Lender hereunder. (e) The terms, provisions and documentation of the Incremental Loans and Incremental Commitments shall be as agreed between the Initial Borrower and the applicable Incremental ~~Loans~~ Lenders providing such Incremental Commitments (including, for the avoidance of doubt, that the Incremental Lenders and/or the Administrative Agent may require certain fees be paid in connection with the provision of such Incremental Commitments and/or the execution of such Incremental Facility Amendment); provided that to ~~be made thereunder~~ the extent any covenants and events of default of any Incremental Commitment are more favorable (with respect to the lenders thereunder) than the comparable terms hereunder (with respect to the Lenders under the Delayed Draw Term Loan Facility), the Lenders hereunder shall be ~~set forth in an Incremental Facility Agreement; provided that, in~~ entitled to such terms with respect to the applicable facilities hereunder. In any event,, any Incremental Loans: (i) shall not mature earlier than the Term Maturity Date at the time of incurrence of such Incremental Loans; (ii) shall have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of Delayed Draw Term Loans outstanding at the time of incurrence of such Incremental Loans; (iii) subject to the foregoing, shall be subject to an amortization schedule and All-In Yield determined by the Initial Borrower and the applicable Incremental Lenders and set forth in each applicable Incremental Facility Amendment; provided, however, that if the ~~Weighted Average~~ All-In Yield applicable to ~~any~~ such Incremental ~~Term~~ Loans ~~issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more~~ shall be greater than ~~0.50% per annum~~ the applicable ~~Weighted Average~~ All-In Yield payable pursuant to the terms of this ~~Agreement,~~ Agreement as amended through the date of such ~~calculation,~~ calculation with respect to ~~Tranche B~~ Delayed Draw Term ~~Loans~~Loans by more than 50 basis points per annum (the amount of such excess, the “Yield Differential”), then the ~~Applicable Margin then~~ interest rate (together with, as provided in ~~effect for Tranche B~~ the proviso below, the Term ~~Loans shall automatically be increased to a level such that the Weighted Average Yield~~ SOFR or Base Rate floor) with respect to the ~~Tranche B~~ Delayed Draw Term Loans ~~is 0.50% per annum below~~ shall be increased by the ~~Weighted Average~~ applicable 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 then-remaining Weighted Average Yield of the Tranche B Term Loans)Differential; provided, further, that, if any Incremental ~~Term~~ Loans ~~or Incremental Revolving Loans, 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~~ All-In Yield for purposes of this clause (iiii), but only to the extent an increase in the Term SOFR or ~~Alternate~~ Base Rate floor applicable to the existing Delayed Draw Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Term SOFR ~~or Alternate~~ and Base Rate floors (but not the applicable rate) applicable to the existing Delayed Draw Term Loans shall be increased to the extent of such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv~~) (x~~) subject to clauses (i), (ii) and (iii) above, ~~the pricing, interest~~ shall have an applicable rate ~~margins, discounts, premiums, rate floors, fees~~ and ~~the~~ amortization ~~schedule applicable to any Incremental Facility shall be~~ determined by the Borrower and the applicable Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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)Lenders; (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~~ and shall not be 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 entity other than a Guarantor 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 AgreementInitial Borrower; and (~~viii~~vi) shall not be established or drawn until after the ~~Incremental Revolving~~ Initial Delayed Draw Term Loan 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~~ have been drawn in ~~this Section 2.21 (Incremental Facilities); provided that, notwithstanding~~ full or terminated. Notwithstanding anything to the ~~contrary in this Section 2.21~~ contrary, the establishment of any Incremental Loans (~~Incremental Facilities~~i) will not impact the amortization 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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~~ Delayed Draw Term Loans, which shall ~~include any amendments that do not reduce~~ in each case, continue to be determined as in effect immediately prior to the ~~ratable amortization received by each Lender thereunder. (f) Upon the effectiveness~~ establishment of ~~an Incremental Commitment of any Incremental Lender,~~ such Incremental ~~Lender~~ Loans and (ii) shall be ~~deemed to be~~ under a ~~“Lender” (and a Lender in respect of Commitments and Loans of~~ different tranche than 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. 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 Commitments and Incremental Loans for all purposes of this Agreementinitial Delayed Draw Term Loans. (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 2.21(a) (Incrementa

Appears in 2 contracts

Sources: Credit Agreement (NSCALE LTD), Credit Agreement (NSCALE LTD)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ request the ~~commitments in respect thereof, “~~establishment of Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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~~ any Incremental Commitments ~~at any time~~ established hereunder shall not exceed the ~~Permitted Incremental Amount applicable to~~ amount of additional Indebtedness permitted at the time such Incremental Commitments ~~at such time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant~~ are established to ~~clause (w) of the definition of “Permitted Debt”~~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 ~~ten (10)~~ 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 (ii) the amount of the Incremental Commitments being requested (it being agreed that (xA) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental 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 (yB) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and ~~must be reasonably acceptable to~~ otherwise satisfy the ~~Administrative Agent~~requirements of Section 12.04(b)(i)). (b) The terms and conditions of ~~the~~ any Incremental Commitments and the Incremental Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the Commitments and the Loans; provided ~~that, in any event,~~ that (i) if the Weighted Average Yield applicable to any Incremental ~~Term~~ Loans ~~issued on or prior to the date that is twelve (12) months after the Closing Date~~ exceeds by more than 0.50% per annum the applicable Weighted Average Yield ~~payable pursuant to~~ under the terms of this Agreement, as amended through the date of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent ~~an increase in the Term SOFR or Alternate Base Rate floor applicable~~ necessary to ~~the existing Term Loans would cause an increase in the interest rate then in effect thereunder~~eliminate such excess, 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 such differential between interest rate floors; (ii) the ~~weighted average life to maturity~~ Average Life of any Incremental ~~Term~~ Loans shall be no shorter than the remaining ~~weighted average life to maturity~~ Average Life of the ~~Tranche B Term~~ Loans ~~(without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans);~~ and (iii) ~~no Incremental~~ the Maturity Date of for any Incremental ~~Term Facility~~ Loan shall not be earlier than the ~~initial Tranche B Term~~ Final Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 Loan is made. Any Incremental Commitments established pursuant to an Incremental Facility ~~Agreement) (it being understood~~ Agreement that ~~to the extent any financial maintenance covenant is added for the benefit of~~ have identical terms and conditions, and any Incremental ~~Term~~ Loans ~~or any Incremental Term Commitments~~made thereunder, ~~no consent~~ shall be ~~required from the Administrative Agent or any~~ designated as a separate Class 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~~ for all purposes 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~~thereunder, (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 of each Loan Party 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,~~ 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,~~ date and (iii) 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered ~~or caused to have been delivered~~ to the Administrative Agent such ~~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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) 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~~ a Lender (~~or Lenders~~ and a Lender in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of ~~Lenders~~ a Lender (~~or Lenders~~ and a Lender 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 Commitments and Incremental Loans for all purposes of this Agreement. (ge) 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~~ 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. (hf) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section ~~2.21(a~~2.08(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders 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 ~~Borrower~~ Company may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ request the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments~~ establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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~~ established hereunder shall not exceed the ~~Permitted Incremental Amount applicable to the Incremental Commitments at such time less~~ sum of (x) US$125,000,000 and (y) the aggregate amount of ~~Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~Commitments terminated under Section 2.16(b). Each such notice shall specify (i) the date on which the ~~Borrower~~ Company 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment ~~(and 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 ~~Borrower~~ Company proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be reasonably acceptable to the Administrative ~~Agent~~Agent and each Issuing Bank, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent or the Issuing Banks, as the case may be, would be required for an assignment to such Person pursuant to Section 9.04). (b) The terms and conditions of ~~the~~ any Incremental ~~Commitments~~ Commitment and the ~~Incremental~~ Loans and other extensions of credit to be made thereunder shall be ~~set forth in an Incremental Facility Agreement; provided that~~identical to those of the existing Commitments and the existing Loans and other extensions of credit made thereunder, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, then the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased to a level such it being understood that the ~~Weighted Average Yield~~ Company, at its election, may pay upfront or other fees in connection with the establishment of Incremental Commitments without paying such fees 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~Company, each Incremental Lender providing such Incremental Commitments and the Administrative ~~Agent~~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~~ 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~~ any 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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.; (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) 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~~ hereunder and ~~Loans of~~ under the ~~applicable Class) hereunder~~ 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~~Documents and (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as provided herein. ~~Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~For the avoidance of doubt, ~~and~~ upon the effectiveness of any Incremental ~~Loans made thereunder~~Commitment, the Applicable Percentages of all the Lenders shall automatically be ~~designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement~~adjusted to give effect thereto. (ge) ~~Subject~~ On the date of effectiveness of any Incremental Commitments, (i) each Incremental Lender that shall have had a Commitment prior to the ~~terms and conditions set forth herein~~ effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds and in the applicable ~~Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Series shall make a loan to the Borrower in~~ currency 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 Commitments) multiplied by (2) the amount of each Borrowing then outstanding and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the amount of each such Borrowing, (ii) each Incremental Lender that shall not have had a Commitment on prior to the ~~date~~ effectiveness of such Incremental 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 Commitments) multiplied by (2) the amount of each Borrowing then outstanding, (iii) after the Administrative Agent receives the funds specified in ~~such Incremental Facility Agreement.~~ clauses (hi) ~~The~~ and (ii) above, the Administrative Agent shall ~~notify~~ pay to each Lender the ~~Lenders promptly upon receipt~~ 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 Commitments) multiplied by (2) the ~~Administrative Agent~~ amount of ~~any notice from~~ each Borrowing then outstanding, and (B) the ~~Borrower referred~~ product of (1) such Lender’s Applicable Percentage (calculated after giving effect to ~~in Section 2.21(a~~the effectiveness of such Incremental Commitments) multiplied by (~~Incrementa~~2) the amount of each such Borrowing, and (iv) each Lender shall be deemed to hold its Applicable Percentage of each Borrowing then outstanding (calculated after giving effect to the effectiveness of such Incremental Commitments).

Appears in 1 contract

Sources: Credit Agreement (White Mountains Insurance Group LTD)

Incremental Facilities. (a) The Parent Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” ; provided that, at the time of (and ~~together with~~ after giving effect to) the establishment of any Incremental Revolving Commitments or Incremental Term 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 Incremental Revolving Commitments and Incremental Term Commitments established pursuant to this Section 2.21, together with the aggregate amount of all Incremental ~~Commitments at any time~~ Equivalent Debt previously (or substantially simultaneously) incurred pursuant to Section 6.01(a)(xxi), shall not exceed the ~~Permitted Incremental Amount applicable~~ greater of (A) $300,000,000 and (B) an amount such that, after giving effect to the making of such Incremental Revolving Commitments at (and assuming any such ~~time less~~ Incremental Revolving Commitments are fully drawn) and Incremental Term Loans and the ~~aggregate amount~~ making of ~~Incremental Equivalent~~ any other Indebtedness 509265-1724-13879091 incurred ~~pursuant~~ substantially simultaneously therewith, the Senior Secured Net Leverage Ratio, calculated on a pro forma basis, is no greater than 2.50 to ~~clause (w) of the definition of “Permitted Debt”~~1.00. Each such notice shall specify (iA) the date on which the Parent 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 ~~ten (10)~~ 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~~ Agent, (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the Parent Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to the Administrative ~~Agent)~~Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank and the Swingline 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 be, except as otherwise set forth herein or in an 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, in any event,~~ 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 ~~issued on or prior to the date that is twelve (12) months after the Closing Date~~ 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~~Loans (such excess, the “Excess Spread”), then (A) the Applicable ~~Margin~~ 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 have terms, in Parent Borrower’s reasonable judgment, customary for a ~~level such that~~ 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 ~~Weighted Average Yield~~ amortization schedule 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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~~ as agreed by the Borrower and the lenders in ~~the calculation of Weighted Average Yield for purposes of this clause (i)~~respect thereof, but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 (~~without giving~~ 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 ~~prior prepayments~~ the establishment of such Incremental Term Loans; provided further that ~~would~~ any Incremental Term A Loans or Incremental Term B Loans may add additional covenants or events of default not otherwise ~~modify~~ applicable to the ~~weighted average life~~ Tranche A Term Loans or Tranche B Term Loans, as the case may be, or covenants more restrictive than the covenants applicable to ~~maturity of~~ the Tranche A Term Loans or the Tranche B Term Loans~~); (iii) no Incremental~~ , as the case may be, in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of ~~any~~ such Incremental ~~Term~~ Facility ~~shall be earlier than~~ so long as all Lenders receive the ~~initial Tranche B Term Maturity Date~~ benefits of such additional covenants, events of default or more restrictive covenants, (~~other than an earlier maturity date for customary bridge financings, which, subject~~ vi) to ~~customary conditions, would either be automatically converted into or required to be exchanged for permanent financing~~ the ~~stated maturity of which shall be no earlier than~~ extent the ~~initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule~~ terms applicable to any Incremental ~~Facility shall be determined by~~ Term A Loans are inconsistent with the ~~Borrower and~~ terms applicable to the ~~Incremental Lenders and (y) all other~~ Tranche A Term Loans or the terms of applicable to any Incremental Term ~~Facility, if not consistent~~ B Loans are inconsistent with the terms of applicable to the Tranche B Term ~~Facility~~ Loans (except, in ~~any material respect~~each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative ~~Agent~~ Agent, and (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); (vvii) any Incremental ~~Term Loans may participate~~ Facility shall have the same Guarantees as, shall rank pari passu with respect to the Liens 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~~ Collateral 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~~ Loans (except to ~~security with any remaining portion of~~ the ~~Facilities, pari passu, junior or unsecured and shall not be secured by any assets other than~~ extent that the ~~Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any~~ related Incremental Facility Agreement provides for such Incremental ~~Commitments or~~ Term Loans to be treated less favorably, in which case such Incremental Term Loans ~~that are pari passu with or junior to the Facilities with respect to security~~ shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the ~~Pari Passu Intercreditor~~ Administrative Agent). Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement ~~and/or the Junior Lien Intercreditor Agreement~~that have identical terms and conditions, ~~as applicable); (vii) the proceeds of~~ and any Incremental ~~Facility~~ Term Loans made thereunder, shall be ~~used for general corporate purposes, including to finance growth Capital Expenditures, to make Permitted Acquisitions and the related transactions and payment~~ designated as a separate series (each a “Series”) 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~~ Term Commitments and Incremental ~~Revolving~~ Term Loans for all purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be ~~identical to~~ more than seven maturity dates in respect of the ~~Revolving Commitments and the Revolving~~ Credit Facilities (including any Extended Term 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 Extended 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 ClassReplacement Term Loans or Replacement Revolving Facilities). (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by ~~the Parent~~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) ~~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 and issuance of Letters of Credit 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 of each Loan Party 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 Commitments and the making of ~~Incremental~~ Loans and other extensions of credit thereunder to be made on the date of effectiveness ~~thereof,~~ thereof (and assuming in 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds case of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Revolving 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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~~thereof that such Incremental Revolving Commitments are fully drawn), Holdings and the Parent Borrower shall be in pro forma compliance with the ~~Financial Covenants~~ 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 ~~6.12~~ 2.16 in connection with such Incremental Commitments and the related transactions under this Section, and (~~Financial Covenants~~v) ~~with~~ the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect ~~to the Fiscal Quarter~~ of ~~the Borrower most recently ended~~ 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 ~~Incremental Commitments on a pro forma basis~~ 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 ~~have delivered or caused to have been delivered to~~ be in pro forma compliance with the ~~Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates~~ financial covenants set forth in Sections 6.12 and ~~other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. (e)~~ 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series~~Revolving Commitment”) . For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Revolving Lenders, shall automatically be adjusted to give effect thereto. (ge) 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 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 Parent Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Parent Borrower referred to in ~~Section 2.21(a~~paragraph (a) above and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to paragraph (~~Incrementa~~e) above.

Appears in 1 contract

Sources: Credit Agreement (Trimas Corp)

Incremental Facilities. (a) ~~The~~ At any time and from time to time, the Borrower ~~may on one or more occasions after the Closing Date~~may, by written notice to the Administrative Agent, ~~request: (i)~~ elect to request an increase ~~in any~~ to the Revolving Facility Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (eacheach such increase, an “Incremental ~~Term Facility~~Commitment”; ) in effect on the ~~commitments~~ Closing Date in ~~respect thereof “~~an aggregate principal amount, collectively, not to exceed U.S.$300.0 million. Any Borrowing under an Incremental ~~Term Commitments”~~ Commitment shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and ~~together with the Incremental Revolving Commitments,~~ not less than U.S.$10.0 million (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~~ Such notice shall specify ~~(i)~~ the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be ~~effective~~made available, which shall be a date not less than ~~ten~~ five (105) 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 (or such shorter period as may be agreed by the Administrative Agent). The Borrower shall notify the Administrative Agent in writing of the identity of each Lender or other financial institution (which in any event shall not be the Borrower, an Affiliate of the Borrower or a Defaulting Lender) reasonably acceptable to the Administrative Agent and the Issuing Banks (iieach, an “Incremental Lender”) ~~the amount of~~ to whom the Incremental Commitments ~~being requested~~ have been (~~it being agreed~~ in accordance with the prior sentence) allocated and the amounts of such allocations; provided that ~~(x)~~ any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such ~~Incremental Commitment~~ Increased Amount Date; provided that (~~and any~~ i) no Default or Event of Default shall exist on such ~~Lender that fails to respond~~ Increased Amount Date before or after giving effect 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and ~~the~~ Incremental ~~Loans to be made thereunder shall be set forth in an Incremental Facility Agreement~~Loans; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the ~~weighted average life to maturity of any Incremental Term Loans~~ representations and warranties contained in Article III and the other Loan Documents shall be ~~no shorter than the remaining weighted average life to maturity of the Tranche B Term Loans~~ true and correct in all material respects (~~without giving effect to prior prepayments~~ except that ~~would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii) no Incremental Maturity Date of any Incremental Term Facility~~ such materiality qualifier shall not be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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~~ representations and warranties that already are qualified or modified by materiality in the ~~Borrower~~ text thereof) on and ~~the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms~~ as of the ~~Tranche B Term Facility in any material respect~~Increased Amount Date, ~~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~~ representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects (except that 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 materiality qualifier shall not be ~~secured~~ applicable to any representations and warranties that already are qualified or modified by ~~any assets other than~~ materiality in the ~~Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities~~ text thereof) as of such earlier date; (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 (viiiiii) 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; ; (Biv) ~~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~~ evidenced by one or more ~~Incremental Facility Agreements~~ joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the ~~Parent, the Borrower~~register, 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 (of 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered reasonably satisfactory to the Administrative Agent ~~such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended subject to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~ Section 2.17(e); (~~c)(i~~v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or any Incremental Loans and (iivii) ~~above~~ the terms and conditions of any Incremental Commitment and Incremental Loans (other than those terms relating directly to upfront fees or arrangement fees) shall be ~~satisfied~~ identical to those of the existing Revolving Facility Commitments and Revolving Facility Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without the consent of any Lender. Notwithstanding the foregoing, the Borrower hereby agrees that the availability of Incremental Commitments shall be subject to the prior satisfaction of the following conditions: (x) each Loan Party shall have obtained all material consents necessary in connection with such Incremental Commitments; and (y) the Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the ~~date~~ applicable Increased Amount Date, favorable written opinions of ~~closing of such Limited Condition Acquisition and~~ counsel for the ~~funding of the applicable Incremental Loans~~Loan Parties, (A) ~~no Event of Default under Section 7.01(b)~~dated the applicable Increased Amount Date, ~~(c), (g) or (h) (Events of Default), shall have occurred and be continuing and~~ (B) addressed to each Issuing Bank on the ~~only representations~~ applicable Increased Amount Date, the Administrative Agent, the Collateral Agent and ~~warranties~~ the ~~accuracy of which shall be a condition~~ Lenders, and (C) in form and substance reasonably satisfactory to ~~funding~~ the Administrative Agent and covering such matters relating to the Incremental Commitments and the Incremental Loans as the Administrative Agent shall be reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions. (b) On any Increased Amount Date on which Incremental Commitments are effected, subject to the ~~Specified Representations~~ satisfaction of the foregoing terms and conditions, (~~conformed as necessary~~ i) each of the existing Lenders shall assign to ~~apply to~~ each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such ~~Limited Condition Acquisition)~~ interests in the outstanding Revolving Facility Loans and ~~the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and warranties set forth~~ participations in ~~Article III on the date~~ Revolving Letters 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 Credit outstanding on such ~~closing date; (ii)~~ Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Facility Loans and participations in Revolving Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their Revolving Facility Commitments after giving effect to the addition of such Incremental Commitments ~~and~~ to the ~~making of~~ Revolving Facility Commitments, (ii) each Incremental ~~Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower~~ Commitment shall be ~~in compliance with~~ deemed for all purposes a Revolving Facility Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Facility Loan and have the ~~Financial Covenants set forth in Section 6.12~~ same terms as any existing Revolving Facility Loan and (~~Financial Covenants~~iii) each Incremental Lender shall become a Lender with respect to the ~~Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental~~ Revolving Facility Commitments ~~on a pro forma basis~~ and ~~(iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions~~all matters relating thereto, ~~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~~each case, without the consent of any other Lender~~, effect such amendments to this Agreement and~~ . (c) A portion of the ~~other Loan Documents as~~ Incremental Commitment may be ~~necessary or appropriate,~~ made available for the issuance of Revolving Letters of Credit in an amount not exceeding the ~~opinion~~ proportional amount of the ~~Administrative Agent, to give effect~~ Revolving L/C Sublimit 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 aggregate amount of the ~~Administrative Agent~~ Revolving Facility Commitments as of such date. (d) The Incremental Loans shall be used solely for working capital, capital expenditures and other lawful purposes (including the ~~Borrower~~ payment of transaction fees and expenses and for the issuance of Revolving Letters of Credit). (e) All Incremental Loans will be made in ~~connection~~ accordance with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderprocedures set forth in Section 2.03. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 of the Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Commitments and the Incremental Lenders. (g) As a condition precedent to the Borrower’s incurrence of additional Indebtedness pursuant to this Section 2.20, (i) the Borrower shall, and shall cause each Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, reaffirmations of the guarantees and the security interests and Liens granted by the Loan Parties under the Security Documents in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (ii) with respect to any ~~notice from~~ Mortgaged Property, the Borrower ~~referred~~ shall, and shall cause each Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, upon the reasonable request of the Administrative Agent and/or the Collateral Agent (x) mortgage modifications or new Mortgages with respect to any Mortgaged Property in ~~Section 2.21(a~~each case in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (y) ~~(Incrementa~~all other items reasonably requested by the Collateral Agent that are reasonably necessary to maintain the continuing perfection or priority of the Lien of the Mortgages as security for such Obligations.

Appears in 1 contract

Sources: Credit Agreement (SemGroup Corp)

Incremental Facilities. (a) The Borrower ~~may on~~ and any one or more ~~occasions after~~ Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the ~~Closing Date, by written notice to the Administrative Agent, request:~~ amount of their Term Loans (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitmentssuch increased amount, the ~~“Incremental Commitments”; the loans made pursuant to such commitments,~~ “Incremental Term Loans”; ), by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility involved, (ii) the applicable Increased Facility Closing Date and (iii) (x) the applicable Incremental Term ~~Facilities~~Maturity Date, ~~together~~ (y) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.3(b), and (z) the ~~Revolving Commitment Increases and the~~ Applicable Margin for such Incremental Term ~~Loan Increases, the “Incremental Facilities”~~Loans,); 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~~A) the final maturity 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans ~~issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more~~ shall be no earlier 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, 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~~ Maturity Date, (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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (iiB) the ~~weighted~~ average life to maturity of ~~any~~ the Incremental Term Loans shall be no 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 Tranche B Term Loans, and (C) if the total yield (calculated for both the Incremental Term Loans and the Tranche B Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below but excluding any arrangement, underwriting or similar fee paid by the Borrower)~~; (iii~~) ~~no Incremental Maturity Date~~ in respect of any Incremental Term ~~Facility shall be earlier~~ Loans exceeds by more than 0.50% the ~~initial~~ total yield for the existing Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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) Loans (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated 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~~ interest rates in a manner determined by the Administrative Agent ~~or any of~~ based on an assumed four-year life to maturity), the ~~Lenders to the extent that such financial maintenance covenant is also added~~ Applicable Margin for the ~~benefit of any~~ Tranche B Term Loans ~~remaining outstanding after~~ shall be increased so that the ~~effectiveness~~ total yield in respect of such Incremental ~~Facility Agreement);~~ Term Loans is no more than 0.50% higher than the total yield for the existing Tranche B Term Loans. Notwithstanding the foregoing, (vi) ~~any~~ the aggregate amount of borrowings of Incremental Term Loans ~~may~~ shall not exceed $50,000,000, provided that, the aggregate amount of such borrowings of Incremental Term Loans shall not exceed $35,000,000 without consent of the Required Lenders and (ii) without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $5,000,000. No Lender shall have any obligation to participate ~~on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis)~~ in any ~~voluntary~~ increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any additional bank, financial institution or ~~mandatory prepayments~~ other entity which, with the consent of the ~~Term Loans, as specified in~~ Borrower and the ~~applicable Incremental Facility Agreement;~~ Administrative Agent (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 which consent 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 outstandingsunreasonably withheld), ~~(2) repayments required upon the maturity date of the Incremental Revolving Commitments and (3) repayment made~~ elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.18(a) shall execute a ~~permanent repayment~~ New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit G-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and ~~termination of commitments (subject~~ to ~~clause (D) below)) of Loans with respect to Incremental Revolving Commitments~~ the same extent as if originally a party hereto and shall be ~~made on a pro rata basis with all other Revolving Commitments on~~ bound by and entitled to the ~~Incremental Facility Closing Date; and (D) the permanent repayment~~ benefits 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 Classthis Agreement. (c) ~~The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by~~ Notwithstanding the ~~Parent~~foregoing, ~~the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that~~ no Incremental ~~Commitments~~ Term Loan shall become effective unless (i) ~~except as otherwise agreed by~~ on the ~~Lenders providing~~ date of such effectiveness (A) the ~~relevant Incremental Facility~~ representations and warranties set forth in ~~connection with any Limited Condition Acquisition (which~~ Article 3 and in each other Loan Document shall be ~~governed by clause~~ true and correct in all material respects as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (din which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (B) ~~below)~~at the time of and immediately after giving effect to such Incremental Term Loan, 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 datecontinuing, (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, (iiiC) after giving effect to ~~such Incremental Commitments and~~ the making of any Incremental ~~Loans~~ Term Loan and ~~other extensions~~ the use of ~~credit thereunder to be made on the date of effectiveness~~ proceeds thereof, (ii) the Borrower shall be in compliance with the ~~Financial Covenants~~ 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 Commitments~~ 6.1 on a pro forma ~~basis and (iv)~~ basis, recomputed as of the last day of the most recently ended fiscal quarter of the Borrower ~~shall have delivered or caused to have been delivered to~~ for which financial statements are available, (y) the Administrative Agent shall have received a certificate to that effect dated such ~~customary~~ date and executed by a Responsible Officer of the Borrower and (iii) the Administrative Agent shall have received legal opinions, board ~~resolutions, secretary’s certificates, officer’s~~ resolutions and other closing certificates and ~~other documents as shall~~ reaffirmation agreements reasonably be requested by the Administrative ~~Agent in connection with any such transaction~~Agent. (d) Notwithstanding anything to the ~~foregoing provisions~~ contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this ~~Section 2.21~~ Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of Incremental ~~Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition~~Term Loans evidenced thereby; provided that, to the extent ~~agreed by~~ such terms and documentation of the ~~applicable Lenders providing such~~ Incremental ~~Commitments, the conditions precedent~~ Term Loans are more favorable to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Lenders of such Incremental Term Loans on than the existing Tranche B Term Loan Facility (except to the extent permitted by Section 2.18(a)), such ~~closing date; (ii) after giving effect to such Incremental Commitments~~ terms and ~~the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower~~ documentation 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered reasonably satisfactory to the Administrative Agent and Required Lenders. Any such ~~customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably~~ amendment may be ~~requested~~ effected in writing by the Administrative Agent ~~in connection~~ with ~~any such transaction.~~ the Borrower’s consent (enot to be unreasonably withheld) ~~Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments~~ and furnished 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderparties hereto. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (UniTek Global Services, Inc.)

Incremental Facilities. (a) The Borrower ~~may on~~ and any one or more ~~occasions after~~ Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the ~~Closing Date,~~ amount of their Incremental Term Loans (which may be effected by ~~written notice~~ increasing the amount of any then existing Facility) by executing and delivering to the Administrative ~~Agent, request: (i)~~ Agent an ~~increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “~~Incremental ~~Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding~~ Term Loan Activation Notice specifying (~~each, a “Term Loan Increase”), or (iii~~v) the ~~addition~~ amount of one or more 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~~ applicable Incremental Term Loan Closing Date (~~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)~~ 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~~ (~~ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect~~ or ~~decline, in its sole discretion, to provide~~ such ~~Incremental Commitment (and any such Lender that fails to respond to such approach~~ earlier date as shall be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to agreed by the Administrative Agent). ), (bx) ~~The terms~~ the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and ~~conditions of~~ (z) the Applicable Margin for such Incremental ~~Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement~~Term Loans; ~~provided that~~provided, ~~in any event,~~ that (i) subject to Section 1.3, the aggregate amount of all Incremental Term Loans and Incremental Equivalent Indebtedness established on any date shall not exceed the Incremental Cap, (ii) except to the extent provided in Section 1.3 if the ~~Weighted Average Yield applicable to~~ proceeds of any Incremental Term Facility are being used to finance a Limited Condition Acquisition, each Incremental Term Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Incremental Term Loans ~~issued~~ in respect of any Incremental Term Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on ~~or prior~~ a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Term Loans and all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to prepayments on the ~~date that is twelve (12) months after~~ same basis as the ~~Closing Date exceeds by more than 0.50% per annum~~ Term B Loans unless the applicable ~~Weighted Average Yield payable pursuant to the terms of this Agreement~~Incremental Term Loan Activation Notice specifies a lesser treatment, ~~as amended through the date of~~ (v) such ~~calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B~~ Incremental Term Loans shall ~~automatically be increased~~ have a final maturity no earlier than the Latest Maturity Date (determined immediately prior 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~~ incurrence of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans)~~; provided~~, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (iivi) the weighted average life to maturity of ~~any~~ such Incremental Term ~~Loans~~ Facility shall be no shorter than ~~the remaining weighted average life to maturity~~ that of ~~the Tranche B~~ any existing Term Loans (~~without giving effect~~ except if required in order to ~~prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B~~ make such Incremental Term Loans fungible with any outstanding Term Loans); , (~~iii~~vii) ~~no Incremental Maturity Date~~ the all-in-yield (whether in the form of ~~any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date~~ interest rate margins, original issue discount, upfront fees or interest rate floors) and (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (iiv) and (~~iii~~vi) above~~, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the~~ ) amortization schedule applicable to ~~any~~ such Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental ~~Lenders~~ Term Facility, provided that, in the event that the all-in-yield for any Incremental Term Facility incurred on or prior to the six month anniversary of the Closing Date shall be more than 50 basis points higher than the corresponding all-in-yield for any then existing Term B Loans as determined by the Administrative Agent in accordance with standard market practices (after giving effect to interest rate margins, original issue discount, upfront fees or interest rate floors), then the all-in-yield with respect to the outstanding Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Term B Loans is equal to 50 basis points and (yviii) ~~all other~~ to the extent that (subject to clauses (iv) through (vii) above) the terms of any Incremental Term ~~Facility, if~~ Facility are not consistent with the terms of the ~~Tranche~~ Term B ~~Term Facility in any material respect~~Facility, they shall be reasonably satisfactory to the Administrative ~~Agent~~ Agent. 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. (~~except for covenants~~ b) Any additional bank, financial institution or other entity which, with the consent of the Borrower 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 which consent 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 outstandingsunreasonably withheld), ~~(2) repayments required upon the maturity date of the Incremental Revolving Commitments and (3) repayment made~~ elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a ~~permanent repayment~~ New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and ~~termination of commitments (subject~~ to ~~clause (D) below)) of Loans with respect to Incremental Revolving Commitments~~ the same extent as if originally a party hereto and shall be ~~made on a pro rata basis with all other Revolving Commitments on~~ bound by and entitled to the ~~Incremental Facility Closing Date; and (D) the permanent repayment~~ benefits 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 Classthis Agreement. (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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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[Reserved]. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ Term Loan Activation Notice may, without the consent of any ~~Lender,~~ Lender (other than the applicable Incremental Term 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 give effect to the provisions of this ~~Section, including, without limitation,~~ Section 2.24. This Section shall supersede any ~~amendments and/or supplements~~ provision of Section 10.1 to the ~~documents delivered to satisfy the Collateral and Guarantee Requirement~~ contrary. (~~including, without limitation, amendments~~ e) It shall be a condition precedent to the ~~Mortgages~~ availability of any Incremental Term Loans that (i) no Default or Event of Default (or, in the case of any Incremental Acquisition Term Facility, no Event of Default under clauses (a) or (f) of Section 8) shall have occurred and ~~datedown endorsements~~ be continuing immediately prior to and immediately after giving effect to the ~~title policies) 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~~ making of such ~~new tranches or sub-tranches, including any amendments that are not adverse to the interests 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~~ (ii) the ~~ratable amortization received by~~ representations and warranties set forth in each ~~Lender thereunder.~~ Loan Document (~~f) Upon~~ or, in the ~~effectiveness of an Incremental Commitment~~ case of any Incremental ~~Lender~~Acquisition Term Facility, the Specified Representations and the Specified Acquisition Agreement Representations) shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Incremental Term Loan Closing Date immediately prior to and immediately after giving effect to the making of such Incremental ~~Lender~~ Term Loans, except to the extent expressly made as of an earlier date, in which case they shall be ~~deemed to be a “Lender”~~ so true and 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 ~~a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth~~ other documents as 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 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 reasonably requested by the Administrative Agent of in connection with any ~~notice from the Borrower referred to in Section 2.21(a) (Incrementa~~Incremental Term Facility.

Appears in 1 contract

Sources: Term Loan Credit Agreement (TTM Technologies Inc)

Incremental Facilities. (a) The Borrower ~~may~~ may, at any time, on one or more occasions ~~after~~ pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the ~~Closing Date~~principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, ~~by written notice~~ an “Incremental Facility” and any loan made pursuant to any Incremental Facility, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the ~~Administrative Agent, request~~Incremental Cap; provided that: (i) ~~an increase in any Revolving Commitments (each, a “Revolving~~ no Incremental Commitment ~~Increase” and the commitments~~ in respect ~~thereof, “~~of any Incremental ~~Revolving Commitments”~~Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) ~~one or more new term loan commitments of~~ except as the ~~same Class as~~ Borrower and any ~~outstanding Term Loan (each~~Lender may separately agree, ~~a “Term Loan Increase”)~~no Lender shall be obligated to provide any Incremental Commitment, or (iii) the addition of one or more 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 determination to provide any 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~~ within the sole and absolute discretion of 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 (ii) the amount of the Incremental Commitments being requested Lender (it being agreed that ~~(x)~~ the Borrower shall not be obligated to offer the opportunity to any Lender ~~approached~~ to ~~provide~~ participate in any Incremental Facility), (iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment ~~may elect~~ or ~~decline~~Incremental Loan, (iv) except as otherwise permitted herein (including with respect to margin, ~~in its sole discretion~~pricing (including any MFN provision), maturity, Weighted Average Life to ~~provide such~~ Maturity and fees), the terms of any Incremental 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 Borrower proposes to become an Incremental LenderFacility, if ~~such Person is~~ not ~~then a Lender~~substantially consistent with those applicable to any then-existing Term Loans, ~~an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to the Administrative ~~Agent~~Agent (it being agreed that any terms contained in such Incremental Facility (w) that are not materially less favorable to the Borrower (taken as a whole) than those contained in the Loan Documents (as determined in good faith by the Borrower). , (bx) ~~The~~ which are applicable only after the then-existing Latest Maturity Date, (y) that is unsecured, which terms reflect market terms and conditions (taken as a whole) for issuances of “high yield” securities at the time of incurrence or issuance (as determined by the Borrower in good faith) and/or (z) that are more favorable to the lenders or the agent of such Incremental Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental ~~Commitments and~~ Facility Amendment (which shall not require the ~~Incremental Loans~~ consent of any existing Lender or the Administrative Agent) shall, in each case be deemed to be ~~made thereunder shall be set forth in an Incremental Facility Agreement~~satisfactory to the Administrative Agent; provided ~~that~~that notwithstanding the foregoing, ~~in any event, (i) if the Weighted Average Yield~~ a “financial maintenance covenant” applicable to any Incremental ~~Term Loans issued on or prior~~ Facility that is a “term loan A” may be added to the ~~date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum~~ Loan Documents or included in 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, then the Applicable Margin then in effect~~ documentation 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~~ Facility and need not be ~~automatically converted into~~ conformed or required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter than the then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, as applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable added 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~~Class), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors;, (iiv) 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 B Term Loans~~ Effective Yield (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the ~~amortization schedule~~ components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental ~~Lenders~~ Facility; provided that that during the period commencing on the Closing Date and ending on the date that is twelve months after the Closing Date, the Effective Yield applicable to any Incremental Facility which consists of syndicated secured term loans (other than Customary Bridge Loans) that are pari passu with the Initial Term Loans in right of payment and with respect to security may not be more than 0.50% per annum higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility; provided, further, that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Term SOFR floor on any Incremental Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or Term SOFR floor applicable to such Initial Term Loan; provided, further, that this Section 2.22(a)(v) shall not apply (x) in respect of any Incremental Facility the proceeds of which will be applied to finance a Permitted Acquisition or other Investment that is permitted hereunder, (y) ~~all other terms~~ in respect of any Incremental ~~Term Facility, if not consistent with the terms of the Tranche B Term~~ Facility ~~in any material respect, shall be reasonably satisfactory to the Administrative Agent (except for covenants and terms~~ having a final maturity date that ~~apply solely to any period~~ is greater than two years after the ~~latest~~ Initial Term Loan Maturity Date ~~that is in effect on~~ or (z) if the ~~effective date~~ aggregate principal amount of such Incremental ~~Facility Agreement~~Loans (together with the aggregate principal amount of all other Incremental Loans excluded in reliance on this clause (z), the aggregate principal amount of all Incremental Equivalent Debt incurred in reliance on clause (z) ~~(it being understood that~~ to the ~~extent any financial maintenance covenant is added for~~ final proviso of the ~~benefit~~ definition of ~~any~~ “Incremental Equivalent Debt” and the aggregate principal amount of all term loan Indebtedness secured on a pari passu basis with the Liens securing the Term Loans ~~or any Incremental Term Commitments, no consent shall be required from the Administrative Agent or any~~ and incurred in reliance on clause (iii) of the ~~Lenders~~ final proviso to clause (z) of Section 6.01(w)) does not exceed (I) prior to the ~~extent that such financial maintenance covenant is also added for~~ consummation of the ~~benefit~~ Topgolf Sale, the greater of ~~any Tranche B Term Loans remaining outstanding~~ $280,000,000 and 50% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries and (II) on or 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 consummation of the ~~Term Loans~~Topgolf Sale, the greater of $129,000,000 and 50% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries, in each case, as ~~specified~~ of the last day of the most recently ended Test Period in the ~~applicable Incremental Facility Agreement;~~aggregate, (vi) ~~any Incremental Commitments~~ except with respect to Customary Bridge Loans and Incremental Loans ~~shall~~in an aggregate principal amount not to exceed the Maturity Limitation Excluded Amount, ~~as elected by~~ the ~~Borrower, be equal or junior in right of payment with any remaining portion of the Facilities and,~~ final maturity date with respect to ~~security~~ any Class of Incremental Loans shall be no earlier than the Latest Maturity Date, (vii) except with respect to Customary Bridge Loans and Incremental Loans in an aggregate principal amount not to exceed the Maturity Limitation Excluded Amount, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof), (viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility, (ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any ~~remaining portion of~~ Incremental Facility shall be determined by the ~~Facilities, pari passu, junior or unsecured~~ Borrower 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~~ arrangers and/or lenders providing such Incremental ~~Commitments or~~ Facility, (x) (A) any Incremental ~~Loans that are~~ Facility may rank pari passu with or junior to any then-existing tranche of Term Loans in right of payment and/or security or may be unsecured (and to the ~~Facilities with respect to security~~ extent the relevant Incremental Facility is secured and not incurred under the Loan Documents, it shall be subject to ~~the Pari Passu Intercreditor Agreement and/or the Junior Lien~~ an 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) no Incremental Facility may be (x) guaranteed by any ~~such Incremental Revolving Commitments~~ Restricted Subsidiary which is not a Loan Party or ~~Incremental Revolving Loans shall not mature earlier~~ (y) secured by any asset of the Borrower and/or any Restricted Subsidiary other than the ~~latest Maturity Date of any Revolving Loans outstanding at the time of incurrence of such Incremental Revolving Commitments;~~Collateral, (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 (ixi) except as otherwise agreed by the ~~Lenders~~ lender or lenders providing the relevant Incremental Facility in connection with any ~~Limited Condition Acquisition (which shall be governed by clause (d) below)~~acquisition or similar Investment, no ~~Default or~~ Event of Default under Section 7.01(a), or with respect to the Borrower, Section 7.01(f) or (g) shall ~~have occurred and be continuing on the date of effectiveness thereof, both~~ exist immediately prior to ~~and immediately~~ or after giving effect to such Incremental ~~Commitments and the making of Incremental Loans thereunder to be made on such date,~~ Facility, (iixii) ~~except as otherwise agreed by the Lenders providing the relevant~~ any 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 may participate (A) in ~~the case~~ any voluntary prepayment of ~~the representations and warranties qualified~~ Term Loans as ~~to materiality,~~ set forth in ~~all respects~~ Section 2.11(a)(i) and (B) ~~otherwise,~~ in ~~all material respects~~any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi), 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 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~~ extent provided in such Incremental Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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.Sections, (dxiii) ~~Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if~~ the proceeds of any Incremental Facility ~~are intended to~~ may be ~~applied to finance a Limited Condition Acquisition~~used for Acquisitions, ~~to the extent agreed~~ Investments, Restricted Payments, Restricted Debt Payments, working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by ~~the applicable Lenders providing such Incremental Commitments~~this Agreement, ~~the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following:~~ and (~~i) (x~~xiv) on the date of ~~execution~~ the Borrowing of any Incremental Loans that will be of the ~~definitive documentation with respect~~ same Class as any then-existing Class of Term Loans, and notwithstanding anything to ~~such Limited Condition Acquisition, all~~ the ~~requirements~~ contrary 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~~Sections 2.08 or 2.13, (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 added to (and constitute a part of, be of the ~~Specified Representations~~ same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (~~conformed as necessary~~ based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to ~~apply to~~ outstanding Term SOFR Loans of the relevant Class and which ends on the last day of such ~~Limited Condition Acquisition~~Interest Period. (b) ~~and the Specified Acquisition Agreement Representations~~Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such other lender being called an “Incremental Lender”); provided that the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Incremental Lender. (c) Each Lender or Incremental Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~will make~~ all such documentation (including the ~~representations~~ relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and ~~warranties set forth in Article III on~~ effectuate such Incremental Commitment. On the effective date of such ~~closing~~ Incremental Commitment, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement. (d) As conditions precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and ~~funding~~ such other documents as it shall reasonably require from such Incremental Lender, (iii) the Administrative Agent, on behalf of the Incremental Lenders, or the Incremental Lenders, as applicable, shall have received the amount of any fees payable to the Incremental Lenders in respect of such ~~Limited Condition Acquisition~~Incremental Facility or Incremental Loans, (iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that ~~only~~ the ~~representations~~ requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and ~~warranties~~ (v) the Administrative Agent shall be entitled to receive 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 (Ba)(xi) 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have above has been delivered to the Administrative Agent such 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 transactionsatisfied. (e) ~~Each~~ [Reserved]; (f) [Reserved]. (g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility ~~Agreement may, without the consent of~~ Amendment and/or any ~~Lender, effect such amendments~~ amendment to ~~this Agreement and the~~ any other Loan ~~Documents~~ Document as may be necessary in order to establish new Classes or ~~appropriate~~sub-Classes in respect of Loans or commitments pursuant to this Section 2.22, in 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 Borrower in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, ~~including any~~ in each case on terms consistent with this Section 2.22 and such other amendments ~~that~~ as are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender described 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. 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 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 AgreementSection 9.02(d)(ii). (h) ~~The Administrative Agent shall notify~~ Notwithstanding anything to the ~~Lenders promptly upon receipt by the Administrative Agent~~ contrary in this Section 2.22 or in any other provision of any ~~notice from~~ Loan Document, if the ~~Borrower referred~~ proceeds of any Incremental Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (i) This Section 2.22 shall supersede any provision in ~~Section 2.21(a) (Incrementa~~Sections 2.18 or 9.02 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Callaway Golf Co)

Incremental Facilities. (a) ~~The~~ At any time prior to the Incremental Facility Sunset Date, the Borrower may ~~on one or more occasions after~~ increase the ~~Closing Date,~~ aggregate amount of the Commitments of any existing Class by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more requesting new delayed draw term loan commitments ~~of the same Class as~~ to provide Delayed Draw Loans (any ~~outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~such increase, 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, or the “Incremental Facilities”~~); provided that the~~ ) by an aggregate amount not in excess of ~~all~~ the Incremental ~~Commitments~~ Cap, tested at the time of incurrence thereof. The Borrower may invite (A) any ~~time shall not exceed the Permitted Incremental Amount applicable~~ Lender, any Affiliate of any Lender and/or any Approved Fund, and/or (B) any other Person 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 provide all or a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount portion of the Incremental Commitments ~~being requested~~ (~~it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and~~ any such ~~Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment~~Person, ~~as the case may be) and (y) any Person that the Borrower proposes to become~~ an “Incremental Lender~~, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent~~”). (b) ~~The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an~~ Any Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ an Incremental Facility ~~Agreements~~ AgreementAmendment 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~Lenders, ~~(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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ AgreementAmendment may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent~~Agent and the Borrower, to ~~give~~ effect to the provisions of this ~~Section, including, without limitation,~~ Section 2.22 (it being agreed and understood that the terms applicable to any ~~amendments and/or supplements~~ Incremental Facility incurred hereunder shall be substantially similar to the ~~documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments~~ terms applicable to the ~~Mortgages~~ then-existing Commitments). The Lenders hereby irrevocably authorize and ~~datedown endorsements~~ direct the Administrative Agent to enter into any Incremental Facility AgreementAmendment and any amendment to any of the ~~title policies)~~ other Loan Documents with the Borrower or the Parent as may be necessary in order to establish new tranches or sub-tranches in respect of Delayed Draw Loans or Commitments increased or extended pursuant to this 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~~tranches (which may include amending and restating the Loan Documents), including any amendments that are not adverse to the interests 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 in each case on terms consistent with ~~an existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received~~ this Section 2.22; it being acknowledged and agreed by each Lender ~~thereunder~~that the Administrative Agent, in its capacity as such shall have no liability with respect to such amendments and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such amendments. For the avoidance of doubt, the amendments referred to in this Section 2.22 shall be subject to the approval requirements set forth in Section 9.08(b)(i) through Section 9.08(b)(viii), in each case, to the extent applicable. (fc) ~~Upon~~ On the ~~effectiveness of an Incremental Commitment~~ effective date of any Incremental ~~Lender~~Commitment, each Incremental Lender that has agreed to provide such Incremental ~~Lender~~ Commitments shall ~~be deemed to be a “Lender” (and~~ become 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. 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 Commitments and Incremental Loans for all purposes of this Agreement. (gd) ~~Subject~~ This Section 2.22 shall supersede any provisions in Section 2.16 or 9.04 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 Agreementcontrary. ~~(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 2.21(a) (Incrementa~~

Appears in 1 contract

Sources: Credit Agreement (CoreWeave, Inc.)

Incremental Facilities. (a) The Lead Borrower ~~may~~ may, at any time, on one or more occasions ~~after~~ pursuant to an Incremental Facility Agreement increase the ~~Closing Date, by written notice to the Administrative Agent, request: (i) an increase in~~ aggregate amount of Commitments of any ~~Revolving~~ existing Class of Commitments (~~each~~any such increase, a an “Incremental Revolving ~~Commitment Increase~~Facility” and the ~~commitments in respect thereof~~loans thereunder, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 principal amount of all Incremental Revolving Facilities incurred after the ~~Incremental Commitments at any time~~ Restatement Effective Date 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 effectiveCap; provided, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or declinefurther, in its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that~~, in any event,~~: (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or no Incremental Revolving ~~Loans, as applicable, include a Term SOFR or Alternate Base Rate floor that is greater~~ Commitment may be less 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors$5,000,000; (ii) except as separately agreed from time to time between the ~~weighted average life~~ Lead Borrower and any Lender, no Lender shall be obligated to ~~maturity of~~ provide any Incremental ~~Term Loans~~ Revolving Commitment, and the determination to provide such commitments shall be ~~no shorter than~~ within the ~~remaining weighted average life to maturity~~ sole and absolute discretion of ~~the Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans)~~such Lender; (iii) no Incremental ~~Maturity Date~~ Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Lender providing all or part of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into Revolving Commitment or ~~required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date)~~Incremental Revolving Loan; (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of ~~the Tranche B Term~~ each Incremental Revolving Facility ~~in any material respect, shall~~ will be ~~reasonably satisfactory~~ substantially identical to those applicable 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)Revolving Facility; (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~~ Except as otherwise agreed by the ~~Term Loans, as specified in~~ lenders providing the ~~applicable~~ relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility; (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 Revolving Facility ~~shall~~ may be used for working capital and other general corporate ~~purposes, including to finance growth Capital Expenditures, to make Permitted Acquisitions~~ purposes 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~~ use not prohibited by this Agreement; and (~~viii~~vii) ~~the~~ at no time shall there be more than three separate Maturity Dates in effect with respect to any existing Additional Revolving Facility at any time. (b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender. (c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall ~~be identical to~~ have received a certificate of 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 otherwiseapplicable Borrower signed by a Responsible Officer thereof: (A) ~~any~~ certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving ~~Commitments~~ Facility or Incremental Revolving ~~Loans shall rank pari passu in right of payment and of security with the Revolving Loans and the Term~~ Loans;, and (B) ~~any~~ to the extent applicable, certifying that the condition set forth in clause (a)(x) above has been satisfied. (i) Each Lender of the applicable class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving ~~Commitments or~~ Facility Lender, and each relevant Incremental Revolving ~~Loans shall not mature earlier than the latest Maturity Date of any Revolving Loans outstanding at the time of incurrence~~ Facility Lender will automatically and without further act be deemed to have assumed a portion of such ▇▇▇▇▇▇’s participations hereunder in outstanding Swingline Loans, US Letters of Credit and/or European Letters of Credit, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving ~~Commitments; (C~~Facility Lender) ~~the borrowing and repayment (except for (1) payments~~ participations hereunder in Swingline Loans, US Letters of ~~interest and fees at different rates on Incremental Revolving Commitments (and related outstandings)~~Credit and/or European Letters of Credit, (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 as applicable, shall be ~~made~~ held on a pro rata basis ~~with all other Revolving Commitments~~ on the ~~Incremental Facility Closing Date; and~~ basis of their respective Commitments of the applicable class (Dafter giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the ~~permanent repayment~~ existing Lenders of the applicable Class shall assign Revolving Loans ~~with respect to, and termination of, Incremental Revolving Commitments shall be made on a pro rata basis with all~~ to certain other ~~Revolving Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments~~ Lenders 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 including the Lenders providing the relevant Incremental ~~Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below~~Revolving Facility), ~~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,~~ other Lenders (~~ii) except as otherwise agreed by~~ including the Lenders providing the relevant Incremental ~~Facility in connection with any Limited Condition Acquisition (which~~ Revolving Facility) 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 respectspurchase such Revolving Loans, in each ~~case, on and as~~ case to the extent necessary so that all of the Lenders of such ~~date, except~~ Class participate in each outstanding borrowing of Revolving Loans pro rata on the ~~case~~ basis 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~~ their respective Commitments of such ~~prior date,~~ Class (~~iii)~~ after giving effect to ~~such Incremental Commitments and~~ any increase in the ~~making of Incremental Loans and other extensions of credit thereunder~~ Commitment pursuant 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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(b2.22), (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; ~~provided that the Borrower will make all the representations and 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~~ minimum borrowing, pro rata borrowing and ~~warranties set forth~~ pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (Be). (f) 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to The Lenders hereby irrevocably authorize the Administrative Agent such 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 to enter into any ~~such transaction. (e) Each~~ Incremental Facility Agreement ~~may, without the consent of~~ and any ~~Lender, effect such~~ other amendments to this Agreement and the other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or ~~appropriate,~~ sub tranches in ~~the opinion~~ respect of ~~the Administrative Agent,~~ Revolving Loans or commitments increased or extended pursuant 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) Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the ~~Borrower~~ Borrowers in connection with the establishment of such new tranches or ~~sub-~~sub tranches, including any amendments that are not adverse to the interests 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 in each case on terms consistent with an existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 Commitments and Incremental Loans for all purposes of this ~~Agreement~~Section 2.22. (g) ~~Subject~~ Notwithstanding to the ~~terms and conditions set forth herein and~~ contrary in ~~the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment~~ this Section 2.22 or in any other provision of any ~~Series shall make a loan to~~ Loan Document, if the ~~Borrower in an amount equal to such Incremental Commitment~~ proceeds on the date ~~specified in~~ of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Lenders providing such Incremental Revolving Facility ~~Agreement~~so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality consisting of an increase in an existing Commitment, the sublimits applicable to Letters of Credit shall increase by an amount, if any, agreed upon by Administrative Agent, the Issuing Banks and the Lead Borrower. (h) ~~The Administrative Agent~~ This Section 2.22 shall ~~notify the Lenders promptly upon receipt by the Administrative Agent of~~ supersede any ~~notice from the Borrower referred to~~ provision in Section ~~2.21(a) (Incrementa~~2.18 or 9.02 to the contrary.

Appears in 1 contract

Sources: Abl Credit Agreement (Ecovyst Inc.)

Incremental Facilities. (a) The Borrower may on from time to time after the Restatement Effective Date elect to increase the Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more occasions after the Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of (or increase any existing tranche of) term loans denominated in Dollars (each, an “Incremental Term ~~Facility~~Loan”; ), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the ~~commitments~~ case of Increased Commitments and (y) $20,000,000 (or such lesser amount as the Administrative Agent may agree), in ~~respect thereof “Incremental Term Commitments” and together with~~ the ~~Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “~~case of Incremental Term Loans”; , so long as (except in the case of Refinancing Term Loans and Refinancing Revolving Commitments) the aggregate principal amount of Increased Commitments or Incremental Term ~~Facilities~~Loans to be established or incurred, ~~together with the Revolving Commitment Increases and the Term Loan Increases~~as applicable, ~~the “Incremental Facilities”); provided that the aggregate amount of all the Incremental Commitments at any time shall~~ does not exceed the ~~Permitted~~ Incremental ~~Amount applicable to the Incremental Commitments~~ Cap at such ~~time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant~~ time. The Borrower may arrange for any such increase or tranche to ~~clause~~ be provided by one or more Lenders (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 may be agreed each Lender so agreeing to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, an increase in its ~~sole discretion~~Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term 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 ~~provide~~ increase their existing Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental ~~Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment~~Term Loan, or extend Revolving Commitments or Extended Revolving Commitments, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided ~~that~~that each New Lender (and, in ~~any event, (i~~the case of an Increased Commitment, each Increasing Lender) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ approval of the ~~Junior Lien Intercreditor Agreement~~Borrower and, 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~~ such consent would be required under Section 9.04 for ~~any other purpose not prohibited by this Agreement; and (viii) the Incremental Revolving Commitments and Incremental Revolving Loans shall be identical~~ an assignment 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 ParentNew Lender, the ~~Borrower~~Administrative Agent and, 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~~ an Increased Commitment, each Issuing Bank and ~~warranties qualified as to materiality, in all respects and~~ Swingline Lender (~~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 Commitments and the making of Incremental Loans and other extensions of credit thereunder consents not 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered unreasonably withheld or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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(bdelayed), (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 . Without the consent of any ~~Lender~~Lenders other than the relevant Increasing Lenders or New Lenders, ~~effect such amendments to~~ this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment 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, 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 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 and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing (but subject to the following proviso), no Increased Commitments or Extended Revolving Commitments or Incremental Term Loans shall be permitted under this paragraph unless (i) on the proposed date of the effectiveness of such increase in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied (or waived by the Required Lenders) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided, that to the extent agreed to by the Lenders providing such Increased Commitments or Incremental Term 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) of this Agreement (or, prior to the initial delivery under this Agreement, of the Original Credit Agreement) 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, 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 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 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 Eurocurrency Loan, and 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 Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i)(x) the final scheduled maturity date of any Incremental Term Loans (other than Refinancing Term Loans) which have scheduled amortization in excess of 1.00% per annum, a final maturity of five years or less and which are primarily syndicated to commercial banks in connection with the ~~establishment~~ primary syndication thereof (as reasonably determined by the Administrative Agent) (each, an “Incremental Term A Loan”) shall be no earlier than the Incremental Term A-1 Loan Maturity Date (or any later date required pursuant to any Additional Credit Extension Amendment that has previously become effective) and (y) the final scheduled maturity date of ~~such new tranches or sub-tranches, including~~ any ~~amendments~~ Incremental Term Loans that are not ~~adverse~~ Refinancing Term Loans or Incremental Term A Loans (each, an “Incremental Term B Loan”) shall be no earlier than the Incremental Term B-1 Loan Maturity Date (or any later date required pursuant to any Additional Credit Extension Amendment that has previously become effective), (ii)(x) the Weighted Average Life to Maturity of any Incremental Term A Loans (other than Refinancing Term Loans) shall not be shorter than the then remaining Weighted Average Life to Maturity of the Incremental Term A-1 Loans (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment that has previously become effective) (except to the ~~interests~~ extent of amortization of up to 1.00% per annum of the original principal amount for periods where amortization has been eliminated as a result of prepayment of the applicable Term Loans) and (y) the Weighted Average Life to Maturity of any ~~Lender~~ Incremental Term B Loans (other than Refinancing Term Loans) shall not be shorter than the then remaining Weighted Average Life to Maturity of the Incremental Term B-1 Loans (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment that ~~are made~~ has previously become effective), (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 (a) incurrence of Refinancing Indebtedness in respect thereof and (b) mandatory prepayments with respect to ~~effectuate changes necessary to enable any Incremental Loans to be fungible for United States federal income tax purposes with an existing~~ a Class of Incremental Term Loans issued subject to customary escrow provisions that include a mandatory prepayment applicable solely to such Class of Incremental Term Loans if the applicable escrow release event does not occur prior to the specified escrow “outside date”), (iv) the provisions with respect to payment of interest (including any “MFN” provisions), original issue discount and upfront fees shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that if the Effective Yield of any newly established Class of Incremental Term Loans (other than Refinancing Term Loans) that is established prior to the date that is 12 months from the Restatement Effective Date exceeds the Effective Yield of the Incremental Term B-1 Loans by more than 50 basis points, then the Applicable Rate for the Incremental Term B-1 Loans shall be increased to the extent required so that the Effective Yield of such Incremental Term B-1 Loans is equal to the Effective Yield of such Incremental Term Loans minus ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇) 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, ~~which shall include any amendments that do not reduce~~ (vi) if the ~~ratable amortization received by each Lender thereunder. (f) Upon~~ Borrower and the ~~effectiveness~~ lenders providing the relevant Class of an Incremental ~~Commitment of any Incremental Lender~~Term Loans agree, such Incremental ~~Lender~~ Term Loans may be Excluded Term Loans, (vii) if the Borrower and the lenders providing the relevant 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 (1) no Event of Default shall have occurred and be continuing, (2) the Incremental Term Loans purchased are immediately and automatically canceled, (3) no proceeds from any loan under any revolving credit facility shall be ~~deemed~~ 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 “~~Lender~~big boy” representation and (~~and a Lender~~ viii) all other terms applicable to such Incremental Term Loans (other than provisions specified in ~~respect of Commitments and Loans~~ clauses (i) through (vii) above) to the extent not identical to the terms 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. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made thereunderthen outstanding Term Loans, shall be ~~designated~~ permitted if 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 ~~separate series (each a “Series”) of Incremental~~ 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 ~~Loans for all purposes~~ Term Loan by virtue of this Agreement. (gb) ~~Subject~~ This Section 2.19 shall override any provisions in Section 9.02 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 Agreementcontrary. ~~(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 2.21(a) (Incrementa~~

Appears in 1 contract

Sources: Restatement Agreement (Cable One, Inc.)

Incremental Facilities. ~~(a) The Borrower may on~~ On one or more occasions at any time after the Closing Date, the Borrowers may by written notice to the Administrative ~~Agent, request:~~ Agent elect to request (iA) an increase ~~in any~~ to the existing Revolving Commitments (~~each~~any such increase, ~~a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof,~~ “Incremental Revolving Commitments”), ) and/or (iiB) the establishment of one or more new term loan commitments of (the ~~same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an~~ “Incremental Term ~~Facility~~Loan Commitments”~~; 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~~ in an aggregate amount ~~of all the Incremental Commitments at any time shall~~ not to exceed the ~~Permitted Incremental Amount applicable to~~ greater of (i) $1,150,000,000 and (ii) 100% of NAI-1539367892v12 Consolidated EBITDA for 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”~~most recently ended Testing Period for which a Compliance Certificate has been delivered in accordance with Section 5.01(c). Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the ~~Borrower proposes~~ applicable Borrowers propose that ~~the~~ such Incremental Commitments shall be effective, which shall be a date not less than ~~ten~~ five (105) Business Days ~~(or such shorter period as may be agreed to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent ~~and (ii)~~ and/or its Affiliates shall use commercially reasonable efforts, with the ~~amount~~ assistance of the Borrowers, to arrange a syndicate of Lenders willing to hold the requested Incremental ~~Commitments being requested (it being agreed~~ 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 ~~any~~ all or a portion of the Incremental ~~Commitment~~ 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 ~~(and any such Lender that fails to respond to such approach~~ shall be ~~deemed~~ allocated shall be subject to ~~have declined to provide such Incremental Commitment, as~~ the ~~case may be)~~ approval of the Borrowers and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to 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)~~. (b)~~ , unless such Incremental Revolving Loan Lender or Incremental Term Loan Lender is an existing Lender. The terms and ~~conditions~~ provisions of ~~the~~ any Incremental Revolving Commitments ~~and the Incremental Loans to be made thereunder~~ shall be ~~set forth in an Incremental Facility Agreement; provided that, in any event, (i) if~~ identical to the ~~Weighted Average Yield applicable to~~ existing Revolving Commitments. The terms and provisions of any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, Loan Commitments 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 such differential between interest rate floors; (ii) the weighted average life to maturity of any Incremental Term Loans shall ~~be no shorter than~~ provide that 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 Tranche B Term Loans); (iii) no Incremental Maturity Date date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which Loan shall be no earlier than the ~~initial Tranche B Term~~ Revolving Maturity ~~Date~~Date (but may have scheduled amortization payments prior to such date)~~; (iv)~~ . 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) ~~subject~~ after giving pro forma effect to ~~clauses~~ such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall exist and (ii) ~~and (iii) above~~as of the last day of the most recent month for which financial statements have been delivered pursuant to Section 5.01, the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ Company would have been in compliance with the ~~amortization schedule~~ Financial Covenants that are applicable ~~to any Incremental Facility shall be determined by the Borrower and the Incremental Lenders and~~ at such time; (y) ~~all other terms of any Incremental Term Facility, if not consistent with~~ the ~~terms of~~ representations and warranties made or deemed made by the ~~Tranche B Term Facility~~ Borrowers in any ~~material respect,~~ Loan Document shall be ~~reasonably satisfactory to the Administrative Agent (except for covenants~~ true and ~~terms that apply solely to any period after the latest Maturity Date that is~~ correct in ~~effect~~ all material respects 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 Commitments except to the extent that such ~~financial maintenance covenant is also added~~ 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 ~~benefit~~ Loan Documents; and (z) the Administrative Agent shall have received each of ~~any Tranche B Term Loans remaining outstanding after~~ the ~~effectiveness~~ following, in form 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 ~~Facility Agreement~~Commitments; (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 (viii) if requested by any Lender, new notes executed by the applicable Borrowers payable to any new Lender, and replacement notes executed by the applicable Borrowers 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 Loan NAI-1539367892v12 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 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 ~~Loans may participate on~~ Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender shall make a ~~pro rata basis or less than pro rata basis~~ Loan to the applicable Borrowers (~~but not on a greater than pro rata basis~~an “Incremental Term Loan”) in ~~any voluntary or mandatory prepayments of the~~ an amount equal to its Incremental Term ~~Loans~~Loan Commitment, ~~as specified in the applicable~~ and (ii) each 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,~~ Term Loan Lender shall become a Lender hereunder 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 Term Loan Commitment and the ~~related transactions~~ 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 ~~payment of fees and expenses with~~ in 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~~ thereof (~~viii~~y) the Incremental Revolving Commitments and the Incremental Revolving ~~Loans shall be identical to~~ Loan Lenders or the ~~Revolving~~ Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable, and (z) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, ~~other than as to their Maturity Date and as set forth~~ in ~~this Section 2.21 (Incremental Facilities); provided that, notwithstanding anything~~ each case subject to the ~~contrary in~~ assignments contemplated by 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 Section. The upfront fees ~~at different rates on Incremental Revolving Commitments (and related outstandings), (2) repayments required upon the maturity date of~~ payable to the Incremental Revolving ~~Commitments~~ Loan Lenders and/or Incremental Term Loan Lenders shall be determined by the applicable Borrowers and ~~(3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (D) below)) of Loans with respect to~~ the applicable Incremental Revolving ~~Commitments shall be made on a pro rata basis with all other Revolving Commitments on the~~ Loan Lenders and/or 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) Term Loan Lenders. The Incremental Commitments shall be effected pursuant to one or more ~~Incremental Facility Agreements~~ Additional Credit Extension Amendments executed and delivered by the ~~Parent~~applicable Borrowers and the Incremental Revolving Loan Lender or Incremental Term Loan Lender, ~~the Borrower~~as applicable, ~~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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~ recorded in the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) Register. Each ~~Incremental Facility Agreement~~ Additional Credit Extension Amendment may, without the consent of any ~~Lender~~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~~Agent and the Company, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.04. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Revolving Credit Agreement (Cooper Companies, Inc.)

Incremental Facilities. i. For the avoidance of doubt and notwithstanding any provision to the contrary set forth in this Agreement or any other Loan Document, this Agreement may be amended (aor amended and restated) ~~The Borrower may on~~ at any time and from time to time to increase the Aggregate Revolving Commitments or to establish one or more occasions after the Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new additional separate tranches of term loans (~~each,~~ each such increase to the Revolving Commitments and/or establishment of a new tranche term loans being referred to herein as 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~~ all of such increases and establishments being referred to ~~such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases,~~ collectively as the “Incremental Facilities”) to be made to the Borrower by an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any Lender) that shall agree to provide any such increase to the Revolving Commitments or such separate tranches of term loans (but without the consent of any other Lender), and each such Person that shall not already be a Lender shall, at the time such agreement becomes effective, become a Lender with the same effect as if it had originally been a Lender under this Agreement with the Revolving Commitment and/or term loan set forth in such agreement; ~~provided that~~ provided, however, that: (A) without the written consent of the Required Lenders, the aggregate principal amount of ~~all~~ increases in the ~~Incremental~~ Revolving Commitments ~~at any time~~ and/or separate term loans effected after the First Amendment Effective Date pursuant to this Section 11.01(b) 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~~ $50,000,000; (~~w) of the definition of “Permitted Debt”. Each such notice shall specify (i~~B) 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 may be agreed to by the Administrative Agent) after the date on which such notice is~~ have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of any such Incremental Facility and the concurrent retirement of any other Indebtedness of a Consolidated Party (1) the Senior Secured Leverage Ratio would not exceed 2.50 to 1.00 and (ii2) the ~~amount~~ Loan Parties would otherwise be in compliance with the financial covenants set forth the in Section 8.11, in each case, as of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, then the Applicable Margin then in effect most recent fiscal quarter end 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect, shall be reasonably satisfactory to the Administrative Agent ~~(except for covenants and terms that apply solely to any period after~~ has received 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 AgreementRequired Financial Information; 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~~ exist at the time of the amendment giving effect to any such increase in the Revolving Commitments and/or the making of a separate term loan, as applicable, becomes effective; and (D) no Lender shall be ~~continuing on~~ obligated to participate in any such increase by increasing its own commitment hereunder unless such Lender elects to do so in its sole discretion at the ~~date~~ time of ~~effectiveness thereof, both immediately prior~~ such increase. The terms applicable to ~~and immediately~~ any additional Revolving Commitments shall be the same as those applicable to the Revolving Commitments (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~~ any amendment in connection with the establishment of such additional Revolving Commitments), except as to any ~~Limited Condition Acquisition (~~related upfront fees 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 Commitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, agreed between 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such additional Revolving Commitments. The terms applicable to any Incremental ~~Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for~~ Facility structured as a ~~Limited Condition Acquisition shall be limited to the following:~~ separate term loan tranche (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 any amendment in connection with the establishment of such term loans), including in respect of pricing, amortization and maturity, shall be as agreed to between the Borrower and the Lenders providing such Incremental ~~Commitments~~ Facility (it being understood that general administrative and similar terms not specific to such Incremental Facility shall be as provided in this Agreement); provided, however, that (A) each such Incremental Facility structured as a separate term loan t ranche may be provided the ~~making~~ right to ratable (with the Tranche B Term Loan and each other Incremental Facility structured as a separate term loan tranche) prepayment in connection with any voluntary or mandatory prepayment, (B) no more than 20% of the initial principal amount of any Incremental ~~Loans and other extensions~~ Facility structured as a separate term loan tranche shall amortize (pursuant to schedule amortization) prior to the Maturity Date of ~~credit thereunder to be made on~~ the Tranche B Term Loan, (C) the final maturity date of ~~effectiveness thereof,~~ any Incremental Facility structured as a separate term loan tranche shall not occur prior to the ~~Borrower shall be in compliance with~~ Maturity Date of the ~~Financial Covenants set forth in Section 6.12~~ Tranche B Term Loan or the final maturity date of any other then existing Incremental Facility structured as a separate term loan tranche and (~~Financial Covenants~~D) with respect to any Incremental Facility structured as a separate term loan tranche, the ~~Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness~~ Applicable Yield of such Incremental ~~Commitments on~~ Facility may not exceed the Applicable Yield of the Tranche B Term Loan or any other then outstanding Incremental Facility structured as a ~~pro forma basis and~~ separate term loan tranche by more than 0.50% (~~iii)~~ it being understood that the ~~Borrower shall have delivered~~ Applicable Rate for the Tranche B Term Loan or ~~caused to have been delivered~~ any such Incremental Facility may be increased and/or additional fees may be paid to the ~~Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by~~ Lenders holding the ~~Administrative Agent in connection with~~ Tranche B Term Loan and/or any such ~~transaction~~Incremental Facility to the extent necessary to satisfy such requirement). ii. Any such amendment (eor amendment and restatement) ~~Each Incremental Facility Agreement may, without~~ effected pursuant to Section 11.01(b)(i) shall amend the ~~consent~~ provisions of ~~any Lender, effect such amendments to~~ this Agreement and the other Loan Documents ~~as may~~ to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be ~~necessary or appropriate,~~ payable thereon and any fees to be payable in ~~the opinion~~ respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of ~~the Administrative Agent,~~ this Section 11.01(b)) and to ~~give~~ effect such other changes (including changes to the provisions of ~~this Section~~Section 11.01(a), ~~including, without limitation, any amendments and/or supplements to~~ Section 2.05 and the ~~documents delivered to satisfy~~ definition of “Required Lenders”) as the ~~Collateral~~ Borrower 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 Borrower~~ shall deem necessary or advisable in connection with the establishment of any such ~~new tranches~~ Incremental Facility; provided, however, that no such agreement shall: (A) effect any change described in any of clauses (A), (B), (C), (F) and (G) of Section 11.01(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the Aggregate Revolving Commitments or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment establishment of any Incremental ~~Lender~~Facility consisting of a separate tranche of term loans will not, ~~such Incremental Lender shall~~ of itself, be deemed to effect any of the changes described in clauses (A), (B), (C), (F) and (G) of Section 11.01(a)(i), and that modifications to Section 2.12, Section 9.03 or the definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental Facility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in clauses (D) and (E) of Section 11.01(a)(i)), or (B) amend Article VII, VIII or IX in any manner that by its terms benefits one or more tranches, but not all tranches, of Loans or Commitments without the prior written consent of the Required Revolving Lenders, if the Lenders holding Revolving Commitments are not so benefited, and of Lenders holding a ~~“Lender”~~ majority in interest of each separate tranche of term loans then existing and not so benefited, (it being agreed that no provision requiring the Borrower to prepay term loans of one or more Incremental Facilities with the proceeds of Dispositions, Involuntary Dispositions, issuances of Indebtedness, Equity Issuances or with the proceeds of excess cash flow will be deemed to violate this clause). The loans, commitments and ~~a Lender in respect~~ borrowings of any Incremental Facility established pursuant to this Section 11.01(b) shall constitute Loans, Commitments and ~~Loans of the applicable Class) hereunder~~Borrowings under, and ~~henceforth~~ shall be entitled to all the ~~rights of~~benefits afforded by, this Agreement 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, ~~shall be designated as a separate series (each a “Series”) of Incremental Commitments~~ without limiting the foregoing, benefit equally and ~~Incremental Loans for all purposes of this Agreement. (g) Subject to~~ ratably from the ~~terms and conditions~~ Guaranty set forth ~~herein~~ in Article IV hereunder and in the ~~applicable Incremental Facility Agreement~~security interests and Liens created by the Collateral Documents, ~~each Lender holding an Incremental Commitment of any Series shall make a loan to~~ and 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~~ take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the requirements of this sentence are satisfied after the establishment of any ~~notice from the Borrower referred to in Section 2.21(a) (Incrementa~~such Incremental Facility.

Appears in 1 contract

Sources: Credit Agreement (Cincinnati Bell Inc)

Incremental Facilities. (a) The Borrower ~~may on~~ and any one or more ~~occasions after the Closing Date, by written notice~~ Lenders (including New Lenders) may from time to ~~the Administrative Agent, request:~~ time agree that such Lenders shall (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of add one or more new tranches of term ~~loans~~ facilities and/or increase the principal amount of the Term Loans (~~each~~each such new tranche or increase, an “Incremental Term Facility”; ) or (ii) increase the ~~commitments in respect thereof~~ aggregate amount of Revolving Commitments (any such increase, an “Incremental ~~Term Commitments” and~~ Revolving Facility”; together with ~~the Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the~~ any 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~~ , as applicable, by executing and delivering to the ~~Incremental Commitments at such time less~~ Administrative Agent (for further distribution to the ~~aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w~~Lenders) ~~of the definition of “Permitted Debt”. Each such notice shall specify~~ an Increased Facility Activation Notice specifying (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~~ amount of such increase (or loans that will comprise any such ~~shorter period as may be agreed to by~~ new tranche) and the ~~Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and~~ Facility or Facilities involved, (ii) the ~~amount of the Incremental Commitments being requested~~ applicable Increased Facility Closing Date (~~it being agreed that (x) any Lender approached to provide any Incremental Commitment~~ which may ~~elect or decline, in its sole discretion, to provide such Incremental 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~~ selected by the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date~~); (iv) (x) subject to clauses (ii~~) and (iii) ~~above~~in the case of Incremental Term Loans, (x) the ~~pricing~~applicable Incremental Term Facility maturity date, ~~interest rate margins, discounts, premiums, rate floors, fees and~~ (y) the amortization schedule ~~applicable to any~~ for such Incremental Term Facility ~~shall be determined by the Borrower and the Incremental Lenders~~ and (yz) ~~all other terms of any~~ the Applicable Margin for such Incremental Term Facility; provided, ~~if not consistent with the terms of the Tranche B Term Facility in any 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~~ no Default or Event of Default exists or shall exist immediately before or after giving effect to 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;~~ Facility; (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~~ (including New Lenders) committing to provide such Incremental Facility, if the ~~relevant~~ proceeds of such 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 are to be ~~made on such date~~used to finance a Permitted Acquisition, (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 each of ~~effectiveness thereof,~~ the representations and warranties ~~set forth~~ made by any Loan Party in ~~Article III and in~~ or pursuant to the ~~other~~ Loan Documents shall be true and correct in all material respects (~~A) in the case of the~~ provided that if any such representations and warranties are qualified ~~as to~~ by “materiality,” “Material Adverse Effect” or similar language, such representations and warranties shall be true and correct in all ~~respects~~ respects) immediately prior to, and ~~(B) otherwise~~after giving effect to, ~~in all material respects~~such Incremental Facility, ~~in each case, on~~ except for representations and warranties made as of ~~such date, except in the case of any such representation and warranty~~ a specific earlier date 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~~ earlier date, (~~iii~~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, respectively, of the Term Facility (other than as necessary to make such Incremental Term Facility fungible with such outstanding Term Loans); provided, that in the case of an Incremental Term Facility that is secured on a junior basis to the Term Loans or is unsecured, the maturity date therefor shall be no earlier than the date that is 91 days after the Latest Maturity Date; (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, the total yield (including the upfront fees, any interest rate floors and any OID, but excluding any arrangement, underwriting or similar fee paid that are not paid to all lenders generally with respect to such Indebtedness) in respect of any Incremental Term Loans that are incurred by the Borrower or any of its Subsidiaries, are secured by a lien on the Collateral that is pari passu with the lien securing the Term Loans will not be more than 0.50% higher than the corresponding total yield for the existing Term Loans (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”); (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, (F) the First Lien Net Leverage Ratio for the Test Period most recently ended on or prior to the date of such incurrence and for which a certificate of a Responsible Officer of the Borrower was delivered pursuant to Section 6.2(a) is less than 2.00 to 1.00 on a pro forma basis after giving effect to such Incremental Facility, (G) no Incremental Facility shall be guaranteed by any Person that is not a Loan Party or be secured by any assets other than Collateral, and (H) any Incremental Facility that (x) is secured shall be secured only by the Collateral and on a pari passu (but without regard to control of remedies) or junior basis with the Term Loans and (y) ranks pari passu in right of security or that is subordinated in right of payment or security shall be subject to an intercreditor agreement that is reasonably satisfactory to the Administrative Agent and the Required Lenders, 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 to the extent permitted by clause (C) or (D) above), such terms (w) shall be reasonably satisfactory to the Administrative Agent and the Lenders party thereto, (x) shall only be applicable after the latest maturity date of the then-existing Term Loans, (y) [reserved] or (z) the Lenders of the then-existing Term Loans receive the benefit of such more restrictive terms. Without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments and ~~the making~~ borrowings of Incremental Term Loans shall not exceed (x) the greater of (i) $50 million and ~~other extensions~~ (ii) 25% of ~~credit thereunder~~ LTM EBITDA (the “Incremental Fixed Amount”) plus (y) an amount equal to be the aggregate principal amount of all voluntary prepayments and debt buybacks (which shall include, for the avoidance of doubt, any voluntary redemption and consummated offer to purchase including pursuant to any “yank-a-bank” provision) (i) with respect to Incremental Facilities that are secured by a lien on the Collateral that is pari passu with the lien securing the Term Loans, of any class of Specified Indebtedness secured by a lien on the Collateral that is pari passu with the Term Loans, (ii) with respect to Incremental Facilities that are secured by a lien on the Collateral that is junior to the lien securing the Term Loans, of any class of Specified Indebtedness secured by a lien on the Collateral that is pari passu with or junior to the lien securing the Term Loans, and (iii) with respect to Incremental Facilities that are unsecured, of any class of Specified Indebtedness secured by a lien on the Collateral that is pari passu with or junior to the lien securing the Term Loans or unsecured (with, in the case of any revolving facilities, a corresponding reduction of commitments thereunder), in each case made on prior to the date of ~~effectiveness thereof~~any such incurrence, with credit given to the cash payment made in respect of such buybacks, and voluntary commitment reductions of any revolving credit facilities made prior to the date of any such incurrence, in each case except to the extent financed with proceeds of long-term indebtedness (other than a revolving facility; provided that to the extent such long-term indebtedness is subsequently prepaid, redeemed, repurchased or otherwise retired not with other long-term indebtedness (other than revolving indebtedness), the principal amount of any such reduction shall be added to this clause (y)) (collectively, the “Incremental Prepayment Amount”, and, together with the Incremental Fixed Amount, the “Incremental Limit”) (provided, that for purposes of determining compliance with the Incremental Limit, any unfunded commitments shall be deemed to be drawn in full and the cash proceeds of any such Indebtedness incurred substantially concurrently therewith, or in a series of related transactions therewith, shall not be cash netted). Notwithstanding the foregoing, without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $10 million. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any additional bank, financial institution or other entity which, with the consent of the Borrower and, other than with respect to a Lender, an Affiliate of a Lender, or an Approved Fund, the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.22(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit C, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. (c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrower shall be borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in ~~compliance with~~ the ~~Financial Covenants set forth~~ relevant increase in ~~Section 6.12 (Financial Covenants) with respect~~ an amount determined by reference to the ~~Fiscal Quarter~~ amount of each Type of Loan (and, in the case of Term Benchmark Loans, of each Term Benchmark Tranche) which would then have been outstanding from such Lender if (i) each such Type or Term Benchmark Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Term Benchmark Tranche requested to be so borrowed or effected had been proportionately increased. The Term SOFR Rate applicable to any Term Benchmark Loan borrowed pursuant to the preceding sentence shall equal the Term SOFR Rate then applicable to the Term Benchmark Loans of the ~~Borrower most recently ended as~~ other Lenders in the same Term Benchmark Tranche (or, until the expiration of the ~~date of effectiveness of~~ then-current Interest Period, such ~~Incremental Commitments on a pro forma basis and (iv)~~ other rate as shall be agreed upon between the Borrower ~~shall have delivered or caused to have been delivered to~~ and the Administrative Agent such 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 transactionrelevant 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 Increased Facility 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 evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (i) The Borrower shall first seek any Incremental Term Loans from the existing Lenders on a bona fide and pro rata basis, and each such Lender shall, by written notice to the Borrower or the Administrative Agent not more than twenty (20) days after the date of such L▇▇▇▇▇’s receipt of the applicable Incremental Term Loan request from the Borrower or the Administrative Agent, as applicable, either elect to provide its pro rata portion of the offered amount of such Incremental Term Loan or decline (in each case, in such L▇▇▇▇▇’s sole discretion) to provide such pro rata portion of the offered amount of such Incremental Term Loan (and any such Lender that does not deliver such a written notice within such period of twenty (20) days shall be deemed to have declined to provide such pro rata portion of the offered amount of such Incremental Term Loan). In the event that any existing Lender declines to provide its pro rata share of such Incremental Term Loan, the Borrower may then seek the balance of each declining Lender’s pro rata share of such Incremental Term Loan on the same terms from any additional bank, financial institution or other Person so long as such additional bank, financial institution or other Person shall be reasonably satisfactory to the Borrower and the Administrative Agent; provided that, the Borrower must first offer (in a bona fide offer in good faith) such declined pro rata share (which offer may be made concurrently with the initial bona fide offer in good faith) to the existing Lenders that have agreed to provide their ratable share of such Incremental Term Loan (the foregoing provisions of this Section ~~2.21~~ 2.22(f), the “ROFO Provision”). (~~Incremental Facilities~~ii) ~~or in any other provision of any Loan Document~~In addition, ~~if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition,~~ notwithstanding anything to the ~~extent agreed by the applicable Lenders providing such Incremental Commitments~~contrary in this Agreement, the ~~conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition~~ Borrower shall ~~be limited to the following: (i) (x) on the date of execution of the definitive documentation~~ not enter into any agreement with respect to ~~such Limited Condition Acquisition~~any Incremental Facilities with any New Lender, ~~all~~ except in compliance with the ~~requirements set forth in clause (c)(i)~~ following terms 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,~~ conditions: (A) ~~no Event of Default under Section 7.01(b~~If the Borrower receives a bona fide written offer from a proposed New Lender (or a transaction from a Term Lender that would include any New Lender (collectively, an “Incremental Transaction”) that the Borrower desires to accept (each, an “Incremental Offer”), the Borrower shall, promptly following receipt of the Incremental Offer, notify the Lenders (~~c), (g) or (h~~through the Administrative Agent) (~~Events~~ the “Offer Notice”) of ~~Default~~the material financial terms and conditions of such Incremental Offer (including, for the avoidance of doubt, with respect to fees, the “Material Terms”)~~, shall have occurred and be continuing and~~ . Each Offer Notice constitutes an offer made by the Borrower to enter into an agreement with the Lenders ratably on the same Material Terms as such Incremental Offer (the “ROFR Offer”); (B) At any time prior to the ~~only representations and warranties~~ expiration of a twenty (20) days period following the ~~accuracy~~ Lenders’ receipt of ~~which shall be a condition~~ the Offer Notice (the “Exercise Period”), any Lender may accept the ROFR Offer with respect to ~~funding~~ its pro rata share (based on the Term Loans then held by such Lender) of any such Incremental ~~Loans shall be~~ Offer by delivery to Borrower of a binding letter of intent containing the ~~Specified Representations~~ Material Terms and any standard and customary conditions applicable to a transaction of this nature, executed by such Lender; (~~conformed as necessary to apply to~~ C) If, by the expiration of the Exercise Period, no Lender has accepted the ROFR Offer (or no Lenders have accepted the entire quantum of such ~~Limited Condition Acquisition)~~ ROFR Offer), and ~~the Specified Acquisition Agreement Representations;~~ provided that the Borrower ~~will make~~ has complied with all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this ~~Section~~Section 2.22(f), 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 Borrower ~~in connection~~ may consummate the Incremental Transaction with the ~~establishment of such new tranches or sub-tranches~~relevant New Lender (solely with respect to any quantum not accepted by the Lenders), ~~including any amendments that are not adverse to the interests 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. (f) 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 or, in ~~respect~~ each case any of ~~Commitments and Loans of~~ their respective Affiliates so long as Material Terms are substantially the ~~applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (~~same 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 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 more favorable to the Borrower as the Material Terms set forth in ~~an amount equal to such Incremental Commitment on~~ the ~~date specified in such Incremental Facility Agreement~~Offer Notice. ~~(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 2.21(a) (Incrementa~~

Appears in 1 contract

Sources: Credit Agreement (Real Brokerage Inc)

Incremental Facilities. (a) The ~~Borrower may on one or more occasions~~ Borrowers may, from time to time after the Closing Date, upon notice by ~~written notice~~ the Borrowers to the Person appointed by the Borrowers to arrange an incremental Facility (such Person (who (i) may be the Administrative Agent, ~~request:~~if it so agrees, or (ii) any other Person (other than an Affiliate of any Borrower) appointed by the Borrowers after consultation with the Administrative Agent; provided that such Person may not be an Affiliate of any Borrower), the “Incremental Arranger”) specifying the proposed amount thereof, request an increase in the aggregate Commitments (which shall be on the same terms as, and become part of, the Commitments) (a “Revolving Credit Commitment Increase”) by an amount not to exceed $50,000,000 (the “Available Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (x) $5,000,000 and (y) the entire amount of any increase that may be requested under this Section 2.14. The Borrowers may designate any Incremental Arranger of any Revolving Credit Commitment Increase, if such Incremental Arranger is not the Administrative Agent, with such titles under the Revolving Credit Commitment Increase as Borrowers may deem appropriate. No Lender shall have any obligation whatsoever to provide any Revolving Credit Commitment Increase and may reject any such request in its sole discretion. (b) The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and with the consent of the Administrative Agent, the Swingline Lender and each L/C Issuer (to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans to such Eligible Assignee, which consent shall not be unreasonably withheld or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any Revolving Credit Commitment Increase, the Borrowers must provide to the Administrative Agent the documentation providing for such Revolving Credit Commitment Increase. (c) If the aggregate Commitments are increased in accordance with this Section 2.14, the Administrative Agent and the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase and the Increase Effective Date. In connection with any increase in the aggregate Commitments pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Administrative Agent (and the Lenders hereby authorize the Administrative Agent to execute and deliver any such documentation)) in order to effectuate such increases to the Commitments and to reflect any technical changes necessary or appropriate to give effect to such increase in accordance with its terms as set forth herein. (d) With respect to any Revolving Credit Commitment Increase pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i)) would exist after giving effect to such increase; (ii) the terms of such Revolving Credit Commitment Increase (including the Applicable Rate) shall be documented solely as an increase to the Commitments, with identical terms; (iii) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, Section 6.14 and/or Section 6.16 with respect to Holdings and the Borrowers and each material Subsidiary Guarantor that is organized in a jurisdiction for which counsel to the Administrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Incremental Arranger). Subject to the foregoing, the conditions precedent to each such increase shall be agreed to by the Lenders providing such increase and the Borrowers. (e) On the Increase Effective Date with respect to any Revolving Credit Commitment Increase, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan IncreaseIncrease Lender”), ~~or (iii) the addition of one or more new tranches of term loans (each~~and, ~~an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitments~~if applicable, ~~the “Incremental Commitments”; the loans made pursuant to~~ each such ~~commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the~~ Revolving Commitment ~~Increases~~ Increase Lender will automatically 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and any such Lender that fails to respond to such approach shall without further act be deemed to have ~~declined~~ assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Swingline Loans and L/C Obligations relating to ~~provide~~ Letters of Credit issued such ~~Incremental Commitment~~that, as after giving effect to each such deemed assignment and assumption of participations, the ~~case may be)~~ percentage of the aggregate outstanding participations hereunder in Swingline Loans and L/C Obligations will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any ~~Person that the Borrower proposes to become an Incremental Lender~~Revolving Credit Loans outstanding, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Revolving Credit Loans ~~to be made thereunder~~ shall ~~be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued~~ on or prior to the ~~date~~ Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that ~~is twelve (12) months after~~ the ~~Closing Date exceeds by more than 0.50% per annum~~ minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the ~~applicable Weighted Average Yield payable~~ transactions effected pursuant to the ~~terms of this Agreement~~immediately preceding sentence. (f) If the Incremental Arranger is not the Administrative Agent, ~~as amended through~~ the date of 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 actions authorized to be ~~exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter than~~ taken by the ~~then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any~~ Incremental Term Loans or Incremental Revolving Loans, 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 Arranger herein shall be ~~included~~ done in the calculation of Weighted Average Yield for purposes of this clause (i), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent consultation with ~~the terms of the Tranche B Term Facility in any 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 preparation of any ~~Incremental Facility shall be used for general corporate purposes, including~~ documentation necessary or appropriate to ~~finance growth Capital Expenditures, to make Permitted Acquisitions and~~ carry out 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section ~~2.21~~ 2.14 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 including 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, including, without limitation~~Documents), any ~~amendments and/or supplements~~ comments 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~~ documentation reasonably requested by the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 Commitments and Incremental Loans for all purposes of this Agreementreflected therein. (g) ~~Subject to~~ Each of the ~~terms~~ parties hereto acknowledges and ~~conditions set forth herein and in the applicable Incremental Facility Agreement~~agrees that, ~~each Lender holding an Incremental Commitment~~ if there are any Mortgaged Properties, any increase, extension or renewal of any ~~Series~~ of the Revolving Credit Commitments or Revolving Credit Loans (but excluding (i) any continuation or conversion of borrowings, (ii) the making of any Revolving Credit Loans or (iii) the issuance, renewal or extension of Letters of Credit) shall ~~make a loan~~ be subject to (and conditioned upon): (1) the ~~Borrower in an amount equal~~ prior delivery of all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to such ~~Incremental Commitment on~~ Mortgaged Properties as required by Flood Insurance Laws and as otherwise reasonably required by the ~~date specified in such Incremental Facility Agreement. (h) The~~ Administrative Agent ~~shall notify the Lenders promptly upon~~ and (2) receipt by the Administrative Agent of ~~any notice~~ written confirmation from the ~~Borrower referred~~ Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to ~~in Section 2.21(a) (Incrementa~~be unreasonably withheld, conditioned or delayed).

Appears in 1 contract

Sources: Abl Credit Agreement (V2X, Inc.)

Incremental Facilities. On up to four (a4) ~~The~~ occasions at any time after the Effective Date, the Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the ~~Administrative Agent, request:~~ Agent elect to request (iA) an increase ~~in any~~ to the existing Revolving Commitments (~~each~~any such increase, a the “~~Revolving Commitment Increase” and the commitments in respect thereof, “Incremental~~ New Revolving Commitments”), ) and/or (iiB) the establishment of one or more new term loan commitments of (the ~~same Class as any outstanding Term Loan (each, a~~ “~~Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental~~ New Term Commitments~~” and~~ ”, together with the ~~Incremental~~ New Revolving Commitments, the “Incremental Commitments”~~; the loans made pursuant~~ ), by up 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 an aggregate amount of not to exceed $500,000,000 for 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”Commitments. Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the Borrower proposes that ~~the~~ 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 to by the Administrative Agent)~~ after the date on which such notice is delivered to the ~~Administrative~~ Agent. The Agent ~~and (ii)~~ and/or its Affiliates shall use commercially reasonable efforts, with the ~~amount~~ assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental ~~Commitments being requested (it being agreed~~ Commitments; provided that (x) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $25,000,000, (y) any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Commitments may elect or decline, in its sole discretion, to provide ~~such~~ an Incremental ~~Commitment (~~Commitment; provided that the Lenders will first be afforded the opportunity to provide the Incremental Commitments on a pro rata basis, and if any Lender so approached fails to respond, such Lender ~~that fails to respond to such approach~~ shall be deemed to have declined to provide such Incremental ~~Commitment~~Commitments, ~~as the case may be)~~ and (yz) any Lender or other Person that ~~the Borrower proposes to become an Incremental Lender, if such Person~~ is ~~not then a Lender, an Affiliate of a Lender or an Approved Fund must be~~ an Eligible Assignee ~~and must~~ (each, a “New Revolving Lender” or “New Term Lender,” as applicable) to whom any portion of such Incremental Commitment shall be ~~reasonably acceptable~~ allocated shall be subject to the ~~Administrative Agent~~approval of the Borrower and the Agent (such approval not to be unreasonably withheld or delayed). , and, in the case of a New Revolving Commitment, the Issuing Banks (b) such approval not to be unreasonably withheld or delayed), unless such New Revolving Lender or New Term Lender is an existing Lender. The terms and ~~conditions~~ provisions of any New Revolving Commitments shall be identical to the ~~Incremental~~ existing Revolving Commitments. The terms and provisions of any New Term Commitments and ~~the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in~~ any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, then the Applicable Margin then in effect for Tranche B New Term Loans shall ~~automatically be increased to a level such~~ (a) provide that the ~~Weighted Average Yield with respect to the Tranche B~~ maturity date of any New 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 Loan that is ~~shorter than the then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which separate tranche shall be no earlier than the ~~initial Tranche B~~ Term Maturity Date); , not have a weighted average life that is shorter than the initial Term Loan, and not have any scheduled amortization payments, (ivb) share ratably in any prepayments of the existing Term Facility, unless the Borrower and the New Term Lenders in respect of such New Term Loans elect lesser payments and (c) otherwise be identical to the existing Term Loans or reasonably acceptable to the 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) ~~subject~~ after giving pro forma effect to ~~clauses~~ such Incremental Commitments and, in the case of a New Term Commitment, the borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall exist and (ii) as of the last day of the most recent quarter for which financial statements have been delivered pursuant to Section 8.1 or Section 8.2, the Borrower would have been in compliance with the financial covenants set forth in Section 9.1; (y) the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) on the effective date of such Incremental Commitments except to the extent 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 (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) (on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents; and (z) the Agent shall have received each of the following, in form and substance reasonably satisfactory to the Agent: (i) if not previously delivered to the 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) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Incremental Commitments; and (ii) 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 addressed to the Agent and the Lenders, and (iii) ~~above~~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. 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 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 Lenders and New Revolving 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 Lender shall become a Revolving Lender with respect to its New Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment, and (ii) each New Term Lender shall become a Term Lender hereunder with respect to the New Term Commitment and the New Term Loans made pursuant thereto. The 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 Lenders or the New Term Commitments and the New Term Lenders, as applicable, and (z) in the case of each notice to any Revolving Lender, the ~~pricing~~respective interests in such Revolving Lender’s Revolving Loans, ~~interest rate margins, discounts, premiums, rate floors,~~ in each case subject to the assignments contemplated by this Section. The upfront fees ~~and~~ payable to the ~~amortization schedule applicable to any Incremental Facility~~ New Revolving Lenders and/or New Term Lenders shall be determined by the Borrower and the ~~Incremental~~ applicable New Revolving Lenders ~~and (y) all other terms of any Incremental~~ and/or New Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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) Lenders. The Incremental Commitments shall be effected pursuant to one or more ~~Incremental Facility Agreements~~ Additional Credit Extension Amendments executed and delivered by the ~~Parent~~Borrower, the ~~Borrower~~New Revolving Lenders or New Term Lenders, ~~each Incremental Lender providing such Incremental Commitments~~ as applicable, 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~ recorded in the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) Register. Each ~~Incremental Facility Agreement~~ Additional Credit Extension Amendment may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement and the other Loan Documents as are consistent with this Section 2.14 and may be necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.14. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Columbia Property Trust, Inc.)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of ~~the same Class as any outstanding~~ Incremental Term Loan ~~(each, a “Term Loan Increase”), or (iii) the addition of one or more 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 (iA) 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative ~~Agent~~ Agent, and (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental Term Loan Commitment, ~~as the case may be) and~~ (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing 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 $50,000,000 and shall be in minimum increments of $10,000,000 (or such other lower amount as may be agreed to by the Administrative Agent). (b) The terms and conditions of ~~the~~ any Incremental ~~Commitments~~ Revolving Commitment and ~~the Incremental~~ Revolving Loans and other extensions of credit to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 those of 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;~~ other extensions of credit made thereunder (~~B) any~~ other than with respect to customary arrangement, upfront and similar fees), and shall be treated as a single Class with such ~~Incremental~~ Revolving Commitments or and Revolving Loans. The Incremental ~~Revolving~~ Term Loans (i) shall not mature earlier than the ~~latest~~ Maturity Date ~~of any Revolving Loans outstanding at the time of incurrence of~~ (but may have amortization and/or customary prepayments prior to 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~~date), (2ii) ~~repayments required upon~~ shall not contain covenants or events of default applicable to such Incremental Term Loans that are more onerous or more restrictive in any material respect (taken as a whole), as determined in good faith by the ~~maturity date~~ board of directors of Holdings (or the Borrower prior to the Mergers, as applicable), than the covenants applicable to the Revolving Loans and (iii) shall have the same Guarantees as, and shall rank pari passu or junior to the Liens on the Collateral and in right of payment with, the Revolving Loans (and in the case of this clause (iii), to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to rank junior, 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 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 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 ~~(3) repayment made in connection with a permanent repayment and termination~~ Incremental Term Loans for all purposes 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 Classthis Agreement. (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 (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) ~~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 (including pro forma effect) to such Incremental Commitments and the making of ~~Incremental~~ Loans and issuance of Letters of Credit 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~~respects prior to, ~~in each case~~and immediately after giving effect to, ~~on and as of~~ such ~~date~~Incremental Commitments, except in to the ~~case of~~ extent any such ~~representation and warranty that~~ representations or warranties are expressly ~~relates~~ limited to ~~a prior~~ an earlier date, in which case such ~~representation~~ representations and ~~warranty~~ warranties shall be true and correct in all material respects as of such ~~prior date~~specified earlier date (provided that no materiality qualifier set forth in this subclause (ii) shall be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), (iii) 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~~ thereof (~~Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis~~ and (ivA) assuming, in the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds case of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Revolving 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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, that such Incremental Revolving Commitments are fully drawn, (B) after giving effect to any permitted pro forma adjustment events and any permitted repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with the effectiveness of such Incremental Commitments and (C) excluding the proceeds of any such Incremental Commitments for purposes of determining Liquidity in the calculation of the Consolidated Total Leverage Ratio), the Borrower shall be in pro forma compliance with the ~~Financial Covenants~~ financial covenants set forth in Section ~~6.12~~ 6.11 (~~Financial Covenants~~after giving effect to any then applicable Acquisition Holiday), (iv) ~~with respect to the Fiscal Quarter of~~ the Borrower ~~most recently ended~~ 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 ~~effectiveness~~ execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no 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 ~~Commitments~~ Term Loans, no Event of Default under clauses (a), (b), (h) or (i) of Section 7.01 is in existence immediately before or after giving effect (including on a pro forma ~~basis~~ basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects as of the date of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, except to the extent any such representations or warranties are expressly limited to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such specified earlier date (provided that no materiality qualifier set forth in this subclause (3) shall be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), (4) as of the date of the borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Incremental Lenders providing such Incremental Term Loans) shall be true and correct in all material respects immediately before and after giving effect to the incurrence of such Incremental Term Loans, except to the extent any such representations or warranties are expressly limited to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such specified earlier date (provided that no materiality qualifier set forth in this subclause (4) shall be applicable to any representations and warranties that are already qualified by materiality or Material Adverse Effect) and (~~iii~~5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall ~~have delivered or caused to have been delivered to~~ be in pro forma compliance with the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent financial covenants set forth in ~~connection with any such transaction. (e)~~ 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 provisions of this ~~Section, including, without limitation,~~ Section and no consent of any ~~amendments and/or supplements to~~ Lender (other than 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 Lenders participating in the ~~reasonable opinion~~ increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20. On the effective date of any increase in the Commitments, (i) each relevant Incremental Revolving 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 Revolving Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in ~~connection~~ the Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the ~~establishment~~ requirements of ~~such new tranches or sub-tranches~~Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, ~~including any amendments that are not adverse~~ in respect of each Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the ~~interests~~ provisions of Section 2.16 if the deemed payment occurs other than on the last day of the related Interest Periods. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender ~~that are made~~ to ~~effectuate changes necessary to enable any~~ increase its Commitment hereunder, or provide Incremental ~~Loans to be fungible for United States federal income tax purposes with an existing Class of~~ Term Loans, ~~which shall include~~ at any ~~amendments that do not reduce the ratable amortization received by each Lender thereunder~~time. (fa) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series”)~~ Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Lenders, shall automatically be adjusted to give effect thereto. (gb) 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 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. (c) 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 equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement. (hd) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in ~~Section 2.21(a~~paragraph (a) above and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to paragraph (~~Incrementa~~e) above.

Appears in 1 contract

Sources: Credit Agreement (CommerceHub, Inc.)

Incremental Facilities. (a) The ~~Borrower~~ Company may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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~~ established hereunder 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”$300,000,000. Each such notice shall specify (iA) the date on which the ~~Borrower~~ 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 ~~ten (10)~~ 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~~ Agent, (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the ~~Borrower~~ Company proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be reasonably acceptable to the Administrative ~~Agent)~~Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and the Swing Line Bank) and (C) in the case of Incremental Revolving Commitments, whether such Incremental Revolving Commitments are to be Multicurrency Tranche Revolving Loan Commitments or US Tranche Revolving Loan Commitments. (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 Loan Commitments of the applicable Class and the 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 Commitments and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the Term Loan Commitments and the Term Loans; provided ~~that, in any event,~~ that (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B~~ Term Loans and (~~without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii~~ii) no Incremental Term Loan Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date~~); (iv) (x) subject~~ . Any Incremental Term Commitments established pursuant to ~~clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any~~ an Incremental Facility ~~shall be determined by the Borrower~~ Agreement that have identical terms and ~~the Incremental Lenders~~ conditions, and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ made thereunder, shall be designated as a separate series (each a “Series”) of 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 Commitments and 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~~ for all purposes 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~~Company, 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~~ Unmatured 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~~ any 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 of each Loan Party 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~~ respects, in each case on and as of such ~~prior~~ date, (iii) after giving effect to such Incremental Commitments and the making of ~~Incremental~~ Loans ~~and other extensions of credit~~ thereunder ~~to be made on~~ in the ~~date of effectiveness~~ full amount thereof, the ~~Borrower~~ Company shall be in pro forma compliance with the ~~Financial Covenants~~ financial covenants set forth in Section ~~6.12 (Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended~~ 7.04 as of the ~~date~~ end of ~~effectiveness of such Incremental Commitments on a pro forma basis and~~ the most recent fiscal quarter for which financial statements shall have been delivered under Section 7.01, (iv) the Borrower shall make any payments required to be made pursuant to Section 4.04 in connection with such Incremental Commitments and the related transactions under this Section and (v) the Company shall have ~~delivered or caused to have been~~ 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 Agent in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in the opinion of the Administrative ~~Agent~~Agent and the Company, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment of the applicable Class, shall increase) the Revolving Commitment of the applicable Class of such Incremental Lender and (B) the Aggregate Revolving Loan Commitment of the applicable Class shall be ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a “Series”)~~ provided herein. For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments and Incremental Loans for~~ Revolving Commitment, the applicable Pro Rata Shares of all ~~purposes of this Agreement~~the Lenders shall automatically be adjusted to give effect thereto. (ge) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender of the applicable Class shall assign to each Incremental Revolving Lender, and each Incremental Revolving Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans of the applicable Class and, as applicable, 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, as applicable, participations in Letters of Credit and Swing Line Loans will be held by all the Lenders with Revolving Loan Commitments of the applicable Class (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) 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~~ Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~Borrower~~ Company referred to in paragraph (a) of this Section ~~2.21(a~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Pro Rata Shares of the applicable Lenders after giving effect thereto and of the assignments required to be made pursuant to paragraph (e) ~~(Incrementa~~of this Section.

Appears in 1 contract

Sources: Credit Agreement (Trimble Navigation LTD /Ca/)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i~~) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii~~) one or more ~~new term loan commitments~~ increases in the amount of the ~~same~~ Revolving Commitments of any Class ~~as any outstanding Term Loan~~ (~~each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~each such increase, an “Incremental ~~Term Facility~~Revolving Commitment Increase”; ) and/or (ii) the ~~commitments in respect thereof “~~establishment of 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 Revolving Commitment Increases and Incremental Term Commitments at to be established hereunder on any ~~time~~ date shall not exceed the ~~Permitted~~ sum of (A) the Incremental Base Amount ~~applicable~~ as of such date plus (B) assuming that the full amount of such Incremental Revolving Commitment Increases and/or Incremental Term Commitments, and all previously established Incremental Revolving Commitment Increases and Incremental Term Commitments then in effect, shall have been funded as Loans on such date, an additional aggregate amount, such that, after giving Pro Forma Effect to the establishment of any Incremental Revolving Commitment Increases and/or Incremental Term Commitments ~~at such time less~~ and the ~~aggregate amount~~ use of ~~Incremental Equivalent Indebtedness incurred~~ proceeds thereof, the Borrower shall be in Pro Forma Compliance, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to ~~clause~~ Section 5.01(a) or 5.01(b) (w) or, prior to the delivery of any such financial statements, the last day of the ~~definition of “Permitted Debt”~~last fiscal quarter included in the Pro Forma Financial Statements), with a First Lien Secured Leverage Ratio that is no greater than 3.00:1.00. Each such notice shall specify (iA) the date on which the Borrower proposes that the Incremental ~~Commitments~~ Revolving Commitment Increases or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten (10)~~ 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 (iiB) the amount of the Incremental ~~Commitments~~ Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment Increase or Incremental Term Commitments, (~~and any such Lender that fails~~ y) the Borrower shall not be required to ~~respond to such~~ approach ~~shall be deemed to have declined~~ existing Lenders first to provide ~~such~~ any Incremental ~~Commitment, as the case may be)~~ 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 (yz) any Person that the Borrower proposes to become an a Lender under any Incremental ~~Lender~~Term Commitment or Incremental Revolving Commitment Increase, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee ~~and~~ and, if any consent of the Administrative Agent would be required for an assignment of Loans or Commitment to such Lender, must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Commitment Increase, if any consent of each Issuing Bank and the Swingline Lender would be required for an assignment of Revolving Loans or a Revolving Commitment to such Lender, each Issuing Bank and the Swingline Lender). (b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the ~~Incremental~~ same as those of the Revolving Commitments and Revolving Loans of the ~~Incremental Loans to be made thereunder~~ Class that is being increased and shall be ~~set forth in an Incremental Facility Agreement~~treated as a single Class with such Revolving Commitments and Revolving Loans; provided ~~that~~that any interest margins, ~~in any event, (i) if the Weighted Average Yield~~ commitment fees, pricing and rate floors applicable to any Incremental ~~Term Loans issued on or prior~~ Revolving Commitment Increase may exceed the interest margins, commitment fees, pricing and rate floors payable with respect to the ~~date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable~~ 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 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 ~~Tranche B Term Loans~~(i) matters contemplated by the immediately succeeding proviso, ~~then~~ (ii) other covenants and provisions that apply solely to any period after the ~~Applicable Margin~~ latest Maturity Date then in effect and (iii) any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall be given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for ~~Tranche B Term Loans~~ the benefit of all Lenders, any differences shall ~~automatically~~ be ~~increased~~ reasonably satisfactory to ~~a level such~~ the Administrative Agent; provided further that (A) the Weighted Average ~~Yield with respect~~ Life 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the weighted average life to maturity Maturity of any Incremental Term Loans shall be no shorter than the longest remaining ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~the Tranche B Term~~ any Class of Terms Loans then outstanding, (~~without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii~~B) no Incremental Term Loan Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ then in ~~effect on the effective date of such Incremental Facility Agreement)~~ effect, (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); (vC) any Incremental Term Loans may participate in any mandatory prepayment under Sections 2.11(c) and (e) on a pro rata basis (or on less than pro rata ~~basis (~~basis, but not on a greater than pro rata basis) ~~in any voluntary or mandatory prepayments of~~ with the other Term ~~Loans, as specified in the applicable Incremental Facility Agreement;~~ Loans and (viD) 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 Term Loan shall rank pari passu in right of payment and of security with the ~~Revolving~~ Initial Term Loans and shall be secured only by the Collateral securing the Obligations. Any Incremental Term ~~Loans; (B)~~ Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any ~~such~~ Incremental ~~Revolving Commitments or~~ Term Loans made thereunder, shall be designated as a separate Series of 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 Term Commitments and ~~(3) repayment made in connection with a permanent repayment and termination~~ Incremental Term Loans for all purposes 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 Classthis Agreement. (c) 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 ~~Parent, 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~~ 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 (or in the case of a Limited Condition Acquisition, 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 ~~Incremental~~ Loans and issuance of Letters of Credit 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 of each Loan Party 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,~~ 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 the requirement in this clause (ii) shall only apply to Incremental Term Loan Commitments to the extent requested by the applicable Incremental Term Lenders; (iii) after giving ~~effect~~ Pro Forma Effect to the establishment of any Incremental Revolving Commitment Increase or Incremental Term Commitment, 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 and/or Incremental Term Commitments ~~and the making of Incremental~~ shall have been funded as Loans ~~and other extensions of credit thereunder to be made~~ on ~~the date of effectiveness thereof~~such date, the Borrower shall be in ~~compliance~~ Pro Forma Compliance with ~~the~~ each Financial ~~Covenants set forth in Section 6.12 (Financial Covenants) with respect to the Fiscal Quarter~~ Maintenance Covenant, recomputed as of the ~~Borrower~~ last day of the most recently ended as 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 ~~date of effectiveness of such Incremental Commitments on a pro forma basis and~~ last fiscal quarter included in the Pro Forma Financial Statements); (iv) the Borrower shall ~~have delivered or caused~~ make any payments required to ~~have been delivered~~ be made pursuant to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent Section 2.16 in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental ~~Commitments, the conditions precedent to the Borrower’s right to request such~~ Term Commitments or 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 Revolving Commitment Increase and the ~~funding of the applicable Incremental Loans, (A) no Event of Default~~ related transactions 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) 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, to give effect to the provisions of this Section, ~~including, without limitation, any amendments and/or supplements~~ provided that to the ~~documents delivered to satisfy~~ extent that any term of any such amendment could not be approved as an amendment of this Agreement by the ~~Collateral and Guarantee Requirement (including~~Lenders providing such Incremental Term Commitments voting as a single Class without the approval of any other Lender, ~~without limitation, amendments~~ such amendment will be subject to the ~~Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion~~ approval of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderrequisite Lenders required under this Agreement. (fd) 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~~. Any~~ , and (ii) in the case of any Incremental ~~Commitments established pursuant to an~~ 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 ~~that have identical terms~~ 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 ~~conditions~~(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 ~~any Incremental Loans made thereunder~~the Applicable Percentage of all the Revolving Lenders, shall automatically be ~~designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement~~adjusted to give effect thereto. (ge) 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. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) ~~(Incrementa~~and of the effectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitment Increase, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).

Appears in 1 contract

Sources: Credit Agreement (Costar Group Inc)

Incremental Facilities. (a) ~~The Borrower may on one~~ AfterAt any time or ~~more occasions~~ from time to time after the ~~Closing~~ Restatement Effective Date and before the Stated MaturityExtended Termination Date, the Borrower, by written notice to ~~the~~ Administrative Agent, ~~request:~~ may request (i) ~~an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition establishment of one or more ~~new~~ additional tranches of term loans (~~each~~the commitments thereto, an the “Incremental Term ~~Facility~~Loan CommitmentsLoans”; ) and/or (ii) increases in the ~~commitments in respect thereof~~ Revolving Loan Commitments (the “Incremental ~~Term~~ Revolving Commitments” ~~and~~ and, together with the Incremental ~~Revolving Commitments~~Term Loan CommitmentsLoans, the “Incremental Loan 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~~ byCredit Increases~~, the “Incremental Facilities~~”); provided that each Incremental Credit Increase shall be in an aggregate principal amount not in excess of $300,000,000 in the aggregate and not less than $50,000,000 individually (or such lesser amount as shall constitute the difference between $300,000,000 and the aggregate amount of all ~~the~~ such Incremental Loan Commitments ~~at any time shall~~ obtained on or prior to such date).that is 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”~~than $50,000,000. Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental ~~Commitments~~ Loan CommitmentsCredit Increases shall be effective, which shall be a date not less than ~~ten (10)~~ 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~~ Agent. The Borrower may approach any Lender or any Person (other than an Ineligible Assignee) to provide all or a portion of the Incremental Loan CommitmentsCredit Increases; provided that (i) no Lender will be required to provide such Incremental Loan CommitmentCredit Increase and (ii) ~~the amount~~ any entity providing all or a portion of the Incremental ~~Commitments being requested (it being agreed~~ Loan CommitmentsCredit Increase that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not ~~then~~ a Lender, an Affiliate of a Lender or an Approved Fund ~~must~~ shall not be an ~~Eligible~~ Ineligible Assignee and ~~must~~ shall be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ with 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested acceptance by the Administrative Agent ~~in connection with any such transaction~~to not be unreasonably withheld or delayed). (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Hanesbrands Inc.)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 sum of the cumulative aggregate original amount of all the Incremental Commitments at established under this Section and aggregate original amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(a)(xiii) shall not, on the date of effectiveness of any ~~time shall not~~ Incremental Commitments under this Section or the date of issuance of any such Alternative Incremental Facility Indebtedness, as the case may be, exceed the ~~Permitted~~ Maximum Incremental Amount ~~applicable to the Incremental Commitments at~~ in effect on such ~~time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~date. Each such notice shall specify (iA) 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 ~~ten (10)~~ 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 (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, (1) if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and (2) in the case of an Incremental Revolving Commitment, must be reasonably acceptable 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 (x) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date and (y) 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. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility ~~Agreement~~Amendment, identical to those of the Term Commitments and the Term Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield~~ upfront fees, interest rates and amortization schedule applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 Facility and 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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~~ determined by the ~~extent of such differential between interest rate floors;~~ Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the weighted average life to maturity of any such Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the ~~Tranche B~~ existing Term Loans with the longest remaining weighted average life to maturity at such time; provided that Term Loans (~~without giving effect~~ including any Incremental Term Loans) in a principal amount not to ~~prior prepayments that would otherwise modify~~ exceed $200,000,000 in the aggregate may have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the existing Term Loans with the longest remaining weighted average life to maturity at such time, (iii) if the weighted average yield relating to any Incremental Term Loan exceeds the weighted average yield relating to the Tranche B Term ~~Loans); (iii) no Incremental Maturity Date~~ Loans outstanding immediately prior to the effectiveness of ~~any Incremental Term Facility shall be earlier than~~ the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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~~ Amendment by more than 0.50% (to be determined by the ~~Borrower~~ 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 the Tranche B Term Loans would result in an increase in an interest rate then in effect for the Tranche B Term Loans hereunder)), then the Applicable Rate (A) relating to the Tranche B Term Loans shall be adjusted so that the weighted average yield relating to such Incremental ~~Lenders~~ Term Loans shall not exceed the weighted average yield relating to the Tranche B Term Loans by more than 0.50% and (yB) ~~all other terms~~ relating to the Tranche A Term Loans shall be adjusted to the same extent as the Applicable Rate relating to the Tranche B Term Loans required by subclause (b)(iii)(A) of ~~any Incremental Term Facility~~this Section; provided that, ~~if not consistent with~~ in the ~~terms~~ case of the Tranche B Term Loans only, any greater interest rate floor applicable to such Incremental Term Facility ~~in any material respect~~will, ~~shall~~ if requiring an adjustment hereunder, be ~~reasonably satisfactory~~ reflected as an increase to the ~~Administrative Agent~~ interest rate floor applicable to the Tranche B Term Loans rather than being reflected in an adjustment to the Applicable Rate and (~~except for covenants and terms that apply solely to~~ iv) any ~~period after~~ such Incremental Term Facility will mature no earlier than the latest Maturity Date applicable to any existing Term Loans at such time; provided that ~~is in effect on the effective date of such Incremental Facility Agreement)~~ Term Loans (~~it being understood that to the extent any financial maintenance covenant is added for the benefit of~~ including 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 basisLoans) in ~~any voluntary or mandatory prepayments of the Term Loans, as specified~~ a principal amount not to exceed $200,000,000 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 aggregate may mature earlier than the latest Maturity Date applicable to any existing Term Loans at such time, but in no event shall any Term Loan mature earlier than three years after the Restatement Effective 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 ~~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 Term Commitments and ~~(3) repayment made in connection with a permanent repayment~~ Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and ~~termination~~ all extensions of ~~commitments (subject to clause (D) below)) of Loans with respect to Incremental Revolving Commitments~~ credit thereunder shall be ~~made~~ secured by the Collateral on a ~~pro rata~~ pari passu basis with ~~all~~ the 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 ClassLoan Document Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility ~~Agreements~~ Amendments executed and delivered by ~~the Parent~~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) ~~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 and issuance of Letters of Credit 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 of each Loan Party 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,~~ 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, (iii) ~~after giving effect~~ the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with 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~~ related transactions under this 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 Commitments on a pro forma basis~~ and (iv) the Borrower shall have delivered ~~or caused to have been delivered~~ to the Administrative Agent such ~~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~~. (d) Notwithstanding~~ , including a certificate of a Financial Officer of the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, Borrower to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 effect set forth in ~~clause~~ clauses (~~c)(i~~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~~above, (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 together with reasonably detailed calculations demonstrating compliance with ~~the Financial Covenants set forth in~~ Section ~~6.12 (Financial Covenants~~2.21(a) with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) above. Each Incremental Facility ~~Agreement~~ 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, ~~including, without limitation, any amendments and/or supplements~~ provided that to the ~~documents delivered to satisfy~~ extent that any term of any such amendment could not be approved as an amendment of this Agreement by the ~~Collateral and Guarantee Requirement (including~~Lenders providing such Incremental Commitments voting a single Class without the approval of any other Lender, ~~without limitation, amendments~~ such amendment will be subject to the ~~Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion~~ approval of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderrequisite Lenders required under this Agreement. (fd) 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~~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 set forth in the definition of the term “Revolving Commitment”. ~~Any~~ For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments established pursuant to an~~ Revolving Commitment, the Revolving Exposure of the Incremental ~~Facility Agreement that have identical terms and conditions~~Revolving Lender holding such Commitment, and ~~any Incremental Loans made thereunder~~the Applicable Percentage of all the Revolving Lenders, shall automatically be ~~designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement~~adjusted to give effect thereto. (ge) 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~~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 ~~Agreement~~Amendment. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).

Appears in 1 contract

Sources: First Lien Credit Agreement (Trinet Group Inc)

Appears in 1 contract

Sources: Credit Agreement (Scotts Miracle-Gro Co)

Incremental Facilities. (a) The Lead Borrower ~~may~~ may, at any time, on one or more occasions ~~after~~ pursuant to an Incremental Facility Agreement increase the ~~Closing Date~~aggregate amount of Commitments of any existing Class of Commitments (any such increase, ~~by written notice~~ an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the ~~Administrative Agent, request~~Incremental Cap; provided that: (i) ~~an increase in any Revolving Commitments (each, a “~~no Incremental Revolving Commitment ~~Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”)~~may be less than $5,000,000, (ii) ~~one or more new term loan commitments of~~ except as separately agreed from time to time between the ~~same Class as~~ Lead Borrower and any ~~outstanding Term Loan (each~~Lender, a “Term Loan Increase”), or (iii) the addition of one or more 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 no Lender shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached obligated to provide any Incremental ~~Commitment may elect or decline~~Revolving Commitment, ~~in its sole discretion,~~ and the determination to provide such ~~Incremental Commitment (and any such Lender that fails to respond to such approach~~ commitments shall be ~~deemed to have declined to provide such Incremental Commitment, as~~ within the ~~case may be)~~ sole and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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 absolute discretion of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans);Lender, (iii) no Incremental ~~Maturity Date~~ Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Lender providing all or part of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into Revolving Commitment or ~~required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date);~~Incremental Revolving Loan, (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of ~~the Tranche B Term~~ each Incremental Revolving Facility ~~in any material respect, shall~~ will be ~~reasonably satisfactory~~ substantially identical to those applicable 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);Revolving Facility, (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 Except as otherwise agreed by the ~~Lenders~~ lenders providing the relevant Incremental Facility in connection with ~~any Limited Condition~~ a Permitted Acquisition ~~(which shall be governed~~ or other Investment permitted by ~~clause (d) below)~~the terms of this Agreement, no ~~Default or~~ Event of Default shall ~~have occurred and be continuing on the date of effectiveness thereof, both~~ exist immediately prior to ~~and immediately~~ or after giving effect to such Incremental Revolving Facility, (vi) the proceeds of any Incremental Revolving Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (vii) at no time shall there be more than three separate Maturity Dates in effect with respect to any existing Additional Revolving Facility at any time. (b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender. (c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental ~~Loans thereunder to be made on~~ Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such ~~date~~reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) ~~except~~ the Administrative Agent shall have received, from each Additional Revolving Lender, an Administrative Questionnaire and such other documents as ~~otherwise agreed~~ it shall reasonably require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof: (A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and (B) to the extent applicable, certifying that the condition set forth in clause (a)(x) above has been satisfied. (i) Each Lender of the applicable class immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit, Canadian Letters of Credit and/or European Letters of Credit, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in US Letters of Credit, Canadian Letters of Credit and/or European Letters of Credit, as applicable, shall be held on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental ~~Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below~~Revolving Facility), on and such other Lenders (including the ~~date of effectiveness thereof,~~ Lenders providing the ~~representations and warranties set forth in Article III and in the other Loan Documents~~ relevant Incremental Revolving Facility) 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~~purchase such Revolving Loans, in each ~~case, on and as~~ case to the extent necessary so that all of the Lenders of such ~~date, except~~ Class participate in each outstanding borrowing of Revolving Loans pro rata on the ~~case~~ basis 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~~ their respective Commitments of such ~~prior date,~~ Class (~~iii)~~ after giving effect to ~~such Incremental Commitments and~~ any increase in the ~~making of Incremental Loans and other extensions of credit thereunder~~ Commitment pursuant 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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(b2.22), (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; ~~provided that the Borrower will make all the representations and 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~~ minimum borrowing, pro rata borrowing and ~~warranties set forth~~ pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (Be). (f) 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to The Lenders hereby irrevocably authorize the Administrative Agent such 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 to enter into any ~~such transaction. (e) Each~~ Incremental Facility Agreement ~~may, without the consent of~~ and any ~~Lender, effect such~~ other amendments to this Agreement and the other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or ~~appropriate,~~ sub tranches in ~~the opinion~~ respect of ~~the Administrative Agent,~~ Revolving Loans or commitments increased or extended pursuant 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) Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the ~~Borrower~~ Borrowers in connection with the establishment of such new tranches or ~~sub-~~sub tranches, including any amendments that are not adverse to the interests 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 in each case on terms consistent with an existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 Commitments and Incremental Loans for all purposes of this ~~Agreement~~Section 2.22. (g) ~~Subject~~ Notwithstanding to the ~~terms and conditions set forth herein and~~ contrary in ~~the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment~~ this Section 2.22 or in any other provision of any ~~Series shall make a loan to~~ Loan Document, if the ~~Borrower in an amount equal to such Incremental Commitment~~ proceeds on the date ~~specified in~~ of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Lenders providing such Incremental Revolving Facility ~~Agreement~~so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality consisting of an increase in an existing Commitment, the sublimits applicable to Letters of Credit shall increase by an amount, if any, agreed upon by Administrative Agent, the Issuing Banks and the Lead Borrower. (h) ~~The Administrative Agent~~ This Section 2.22 shall ~~notify the Lenders promptly upon receipt by the Administrative Agent of~~ supersede any ~~notice from the Borrower referred to~~ provision in Section ~~2.21(a) (Incrementa~~2.18 or 9.02 to the contrary.

Appears in 1 contract

Sources: Abl Credit Agreement (PQ Group Holdings Inc.)

Incremental Facilities. ~~(a)~~ The Borrower may ~~on one or more occasions~~ from time to time after the Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) establish one or more ~~new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new~~ tranches of term loans or increase an outstanding tranche of term loans (~~each,~~ each an “Incremental Term Facility”; ), and/or increase the ~~commitments in respect thereof~~ Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term ~~Commitments”~~ Facility and ~~together with the~~ each Incremental Revolving ~~Commitments, the “Incremental Commitments”; the loans made pursuant~~ Increase are collectively referred to ~~such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the~~ as “Incremental Facilities”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided ~~that~~ that: (i) the ~~aggregate~~ principal amount of ~~all the~~ such Incremental ~~Commitments at any time~~ Facility shall not exceed the ~~Permitted Incremental Amount applicable to the Incremental Commitments at such time less~~ greater of: (A) $250,000,000 minus the aggregate initial principal amount of all previously incurred Incremental ~~Equivalent~~ 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 ~~incurred pursuant to clause (w)~~ for purposes of such calculation of the ~~definition of “Permitted Debt”. Each such notice~~ Consolidated Senior Secured Leverage Ratio. (ii) no Default shall ~~specify (i) the date~~ have occurred and be continuing, and no Default would exist after giving effect to any Incremental Facility, both 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 may be agreed to by the Administrative Agent) after the date on which such ~~notice~~ Incremental Facility is ~~delivered to~~ requested and on the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide date on which such Incremental 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 Borrower proposes Facility is to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans)effective; (iii) no each Incremental ~~Maturity Date of any Incremental Term~~ Facility shall be ~~earlier than~~ in a minimum amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity DateAdministrative Agent may agree); (iv) ~~(x) subject~~ no existing Lender shall be under any obligation to ~~clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to~~ provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be ~~determined by the Borrower~~ in such Lender’s sole and the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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)absolute discretion; (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~~ borrower and guarantors for each Incremental Facility ~~Agreement; (vi) any~~ shall be the same as for the Revolving Facility and Term Facility, each 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 Facility shall ~~not~~ be secured by ~~any assets other than~~ Liens in the Collateral that are parity with the Liens in 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 Obligations and each 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~~Obligations; (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 (B) ~~any such~~ documentation from each Person providing an Incremental ~~Revolving Commitments or~~ Facility Commitment evidencing its Incremental ~~Revolving Loans~~ Facility Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent; (vii) the Administrative Agent shall ~~not mature earlier than~~ have received: (A) a certificate of the ~~latest Maturity Date~~ Borrower dated as of ~~any Revolving Loans outstanding at~~ the ~~time of incurrence~~ effective date of such Incremental ~~Revolving Commitments; (C)~~ Facility signed by a Responsible Officer of the ~~borrowing and repayment (except for~~ Borrower (1) ~~payments~~ certifying and attaching resolutions adopted by the board of ~~interest and fees at different rates on~~ directors or equivalent governing body of the Borrower approving such Incremental ~~Revolving Commitments~~ Facility (~~and related outstandings~~which may be the same resolutions as those delivered pursuant to Section 4.01(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) ~~repayments required upon the maturity date of the Incremental Revolving Commitments~~ certifying that, before 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~~Facility, (iix) 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~~ contained in Article ~~III and in the~~ V or any other Loan ~~Documents shall be~~ Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are 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~~respects (or, ~~in each case, on and as of such date, except~~ in the case of any such ~~representation~~ representations and ~~warranty~~ warranties that ~~expressly relates~~ 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 ~~a prior~~ the extent that such representations and warranties specifically refer to an earlier date, in which case ~~such representation and warranty~~ 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 ~~prior~~ earlier date, and (~~iii~~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 that the entire amount of such Incremental Facility 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 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 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 Facility; (~~Financial Covenants~~D) ~~with respect~~ to the ~~Fiscal Quarter~~ extent requested by the Administrative Agent, customary opinions of legal counsel to 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 have delivered or caused to have been delivered~~ Borrower, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such ~~customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and~~ Incremental Facility; and (E) such other documents ~~as shall~~ and certificates it may reasonably ~~be requested by~~ 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 in connection with any such transaction.~~Agent; (dviii) ~~Notwithstanding~~ in the ~~foregoing provisions~~ case of ~~this Section 2.21~~ an Incremental Revolving Increase: (A) the terms and conditions of such Incremental ~~Facilities) or in any~~ Revolving Increase (other ~~provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition,~~ than upfront fees payable to the ~~extent agreed by the applicable~~ Lenders providing such Incremental ~~Commitments~~Revolving Increase and arrangement, structuring, underwriting and similar fees not paid generally to all Lenders providing such Incremental Revolving Increase) shall be the ~~conditions precedent~~ same as the terms applicable to the ~~Borrower’s right to request such Incremental~~ Aggregate Revolving Commitments ~~for a Limited Condition Acquisition shall be limited to the following:~~ hereunder; and (~~i) (x~~B) on the effective date of ~~execution of~~ such Incremental Revolving Increase, the ~~definitive documentation~~ existing Lenders with ~~respect~~ Revolving Commitments shall make such assignments (which assignments shall not be subject to ~~such Limited Condition Acquisition, all~~ the requirements set forth in ~~clause (c)(i~~Section 10.06(b)) of the outstanding Revolving Loans and ~~(ii) above shall be satisfied~~ participation interests in Letters of Credit and ~~(y) on~~ Swing Line Loans to the ~~date of closing of~~ Lenders providing such ~~Limited Condition Acquisition~~ Incremental Revolving Increase, and the ~~funding of~~ Administrative Agent may make such adjustments to the ~~applicable Incremental Loans~~Register as are necessary, (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided so that the Borrower will make all the representations and 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~~ 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 structured as a separate term loan: (A) 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 ~~making of~~ Lenders providing such Incremental ~~Loans and other extensions of credit thereunder to be made on~~ Term Facility; provided that: (1) 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 final maturity of such Incremental ~~Commitments on a pro forma basis and~~ Term Facility shall not be earlier than the Maturity Date then applicable to the Term Loan; (~~iii~~2) the ~~Borrower~~ Weighted Average Life of such Incremental Term Facility shall ~~have delivered or caused to have been delivered to~~ not be shorter than the ~~Administrative Agent~~ then remaining Weighted Average Life of the Term Loan; and (3) prepayment requirements of such Incremental Term Facility shall be customary ~~legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents~~ for such type of term loan facilities (as ~~shall reasonably be requested~~ determined 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementaits discretion);

Appears in 1 contract

Sources: Credit Agreement (Compass Group Diversified Holdings LLC)

Incremental Facilities. ~~(a) The Borrower may on~~ On one or more occasions at any time after the Closing Date, the Borrower may by written notice to the Administrative ~~Agent, request:~~ Agent elect to request (iA) an increase ~~in any~~ to the existing Revolving Commitments (~~each~~any such increase, a the “~~Revolving Commitment Increase” and the commitments in respect thereof, “Incremental~~ New Revolving Commitments”), ) and/or (iiB) the establishment of one or more new term loan commitments of denominated in Dollars (the ~~same Class as any outstanding Term Loan (each, a~~ “~~Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental~~ New Term Commitments~~” and~~ ”, together with the ~~Incremental~~ New Revolving Commitments, the “Incremental Commitments”~~; the loans made pursuant~~ ), by up to ~~such commitments, “~~an aggregate amount not to exceed $500,000,000 for all Incremental ~~Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the “Incremental Facilities”); provided~~ Commitments (so that the ~~aggregate~~ sum of the Total Revolving Commitments plus the principal amount of ~~all the Incremental Commitments at any time shall~~ Dollar Term Loans made hereunder does 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”$2,000,000,000). Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the Borrower proposes that ~~the~~ 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 to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent ~~and (ii)~~ and/or its Affiliates shall use commercially reasonable efforts, with the ~~amount~~ assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental ~~Commitments being requested (it being agreed~~ Commitments; provided that (x) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $25,000,000, (y) any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Commitments may elect or decline, in its sole discretion, to provide ~~such~~ an Incremental ~~Commitment (~~Commitment; provided that the Lenders will first be afforded the opportunity to provide the Incremental Commitments on a pro rata basis, and if any ~~such~~ Lender ~~that~~ so approached fails to respond to within such ~~approach~~ ten (10) Business Day period after its receipt of such request, such Lender shall be deemed to have declined to provide such Incremental ~~Commitment~~Commitments, ~~as the case may be)~~ and (yz) any Lender or other Person that ~~the Borrower proposes to become an Incremental Lender, if such Person~~ is ~~not then a Lender, an Affiliate of a Lender or an Approved Fund must be~~ an Eligible Assignee ~~and must~~ (each, a “New Revolving Lender” or “New Term Lender,” as applicable) to whom any portion of such Incremental Commitment shall be ~~reasonably acceptable~~ allocated shall be subject to the ~~Administrative Agent). (b) The terms and conditions~~ approval of the ~~Incremental Commitments~~ Borrower and the ~~Incremental Loans~~ Administrative Agent (such approval not to be ~~made thereunder shall be set forth in an Incremental Facility Agreement; provided that~~unreasonably withheld or delayed), and, in ~~any event,~~ the case of a New Revolving Commitment, the Issuing Lender and the Swingline Lender (~~i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that~~ each of which approvals shall not be unreasonably withheld), unless such New Revolving Lender is twelve (12) months after the Closing Date 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, 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 an existing Lender (other than a ~~shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into~~ Defaulting Lender) with a Revolving Commitment at such time or ~~required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that~~ such New Term Lender is ~~shorter than the then-remaining Weighted Average Yield~~ an existing Lender or an Affiliate of ~~the Tranche B Term Loans); provided, that, if~~ an existing Lender. The terms and provisions of any ~~Incremental Term Loans or Incremental~~ New Revolving Loans, 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 Commitments shall be ~~included in the calculation of Weighted Average Yield for purposes of this clause (i), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable~~ identical to the existing Revolving Commitments. The terms and provisions of any New Term ~~Loans would cause an increase in the interest rate then in effect thereunder,~~ Commitments and ~~in such case the Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing~~ any New Term Loans shall (a) provide that the maturity date of any New Term Loan that is a separate tranche shall be ~~increased to~~ no earlier than the ~~extent of such differential between interest rate floors; (ii)~~ Dollar Term Loan Maturity Date for the existing Dollar Term Loans and the weighted average life to maturity of ~~any Incremental~~ such New Term Loans shall not be no 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 ~~Tranche B~~ existing Dollar Term Loans); , and such New Term Loans shall not have any scheduled amortization payments, (~~iii~~b) ~~no Incremental Maturity Date~~ share ratably in any prepayments of ~~any Incremental~~ the existing Dollar Term ~~Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings~~Facility, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 unless the Borrower and the ~~Incremental~~ New Term Lenders in respect of such New Term Loans elect lesser payments and (yc) ~~all other terms of any Incremental~~ otherwise be identical to the existing Dollar Term ~~Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect, shall be~~ Loans or reasonably ~~satisfactory~~ acceptable to the Administrative ~~Agent (except for covenants~~ Agent, the Borrower 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 each New 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 Lender. 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~~ availability 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 borrowings under 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 satisfaction of the ~~Incremental Revolving Commitments and~~ following conditions precedent: (3x) ~~repayment made in connection with a permanent repayment and termination of commitments (subject~~ after giving pro forma effect 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 borrowings and the ~~Administrative Agent; provided that no Incremental Commitments shall become effective unless~~ use of proceeds thereof, (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~~ exist 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~~ of the ~~Lenders providing~~ last day of the ~~relevant Incremental Facility~~ most recent calendar quarter for which financial statements have been delivered pursuant to Section 6.1, the Borrower would have been in ~~connection~~ compliance with ~~any Limited Condition Acquisition~~ the financial covenants set forth in Section 7.1; (~~which shall be governed by clause (d~~y) ~~below), on the date of effectiveness thereof,~~ the representations and warranties ~~set forth~~ made or deemed made by the Borrower in ~~Article III and in the other~~ any 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 Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) on the effective date of such Incremental Commitments except to the extent 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 ~~prior~~ earlier date); and (z) the Administrative Agent shall have received each of the following, in form 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 all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments; and (ii) a customary opinion of counsel to the Borrower (which may be in substantially the same form as delivered on the Closing Date), 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. 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 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 ~~Incremental~~ assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving 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 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 Commitments are effected, subject to the ~~making~~ satisfaction of ~~Incremental Loans~~ the foregoing terms and ~~other extensions of credit thereunder~~ conditions, (i) each New Term Lender shall make a Loan to ~~be made on the date of effectiveness thereof,~~ the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment, and (ii) each New Term Lender shall ~~be in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants)~~ become a Dollar Term Lender hereunder with respect to the ~~Fiscal Quarter~~ New Term 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 Lenders or the New Term Commitments and the New Term Lenders, as applicable, and (z) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this paragraph. The fees payable by Borrower ~~most recently ended as of the date of effectiveness of~~ upon any such Incremental Commitments ~~on a pro forma basis and (iv) the Borrower~~ shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be ~~requested~~ agreed upon by the Administrative Agent ~~in connection with any~~ and Borrower at the time of such ~~transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (~~increase. The Incremental ~~Facilities)~~ Commitments shall be evidenced pursuant to one or ~~in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed~~ more Additional Credit Extension Amendments executed and delivered by the ~~applicable Lenders providing such Incremental Commitments~~Borrower, the conditions precedent to the Borrower’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 AcquisitionNew Revolving Lenders or New Term Lenders, ~~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~~ as applicable, and the ~~funding of the applicable Incremental Loans~~Administrative Agent, ~~(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~~ each of which shall be ~~a condition to funding such Incremental Loans shall be~~ recorded in the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) Register. Each ~~Incremental Facility Agreement~~ Additional Credit Extension Amendment may, without the consent of any ~~Lender~~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 ~~give~~ effect to the provisions of this ~~Section~~Section 2.23, ~~including, without limitation, any amendments and/or supplements~~ subject 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 approval of the ~~Administrative Agent and the~~ Borrower ~~in connection with the establishment of such new tranches~~ (which approval shall not be unreasonably withheld or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderdelayed). (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (MPT Operating Partnership, L.P.)

Incremental Facilities. (a) The Borrower ~~may on one~~ may, any time or ~~more occasions~~ from time to time after the ~~Closing~~ Funding Date, by written notice to the Administrative ~~Agent, request:~~ Agent (i) an ~~increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof,~~ “Incremental ~~Revolving Commitments~~Facility Request”), ) request (iix) ~~one~~ the establishment of incremental or ~~more new~~ additional term loan ~~commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans~~ facilities (each, an “Incremental Term Facility”; , the commitments ~~in respect thereof~~ thereunder, the “Incremental Term Commitments” and ~~together~~ the loans thereunder, the “Incremental Term Loans”) and (y) the establishment of incremental or additional revolving loan facilities (each, an “Incremental Revolving Facility”, the commitments thereunder, the “Incremental Revolving Commitments” and the loans thereunder, the “Incremental Revolving Loans”). Any such Incremental Facility may be implemented by increasing the amount of loans and commitments under an existing Facility or by adding a new facility to this Agreement. Subject to the terms and conditions set forth in this Section 2.20, the Incremental Term Facilities shall be funded or the Incremental Revolving Commitments shall become available on the relevant Increased Amount Date; provided that no Incremental Facility shall be incurred on such date to the extent that the aggregate principal amount of such Incremental Facility when combined with the aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt incurred prior to such date exceeds the sum of: (i) the greater of (A) $690,000,000 and (B) 100% of LTM EBITDA (the “Free and Clear Incremental Amount”), plus (ii) an amount equal to the aggregate principal amount of all voluntary prepayments (but, with respect to the Initial Revolving Facility or any Incremental Revolving Facility, only to the extent such voluntary prepayment is accompanied by a permanent reduction of the Initial Revolving Commitments or applicable Incremental Revolving Commitments) of the Initial Revolving Loans, Initial Term Loans or any Incremental Loans or Incremental Equivalent Debt that, in each case, is secured on a pari passu basis with the Initial Facilities prior to the date of such incurrence, in each case, so long as an such voluntary prepayment was not funded with the proceeds of Long Term Debt (the “Voluntary Prepayment Amount”), plus (iii) an amount such that, after giving effect to the incurrence of such amount and the use of proceeds thereof, (A) in the case of any Incremental Facility that is secured on a pari passu basis with the Initial Facilities, the First Lien Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, does not exceed 3.25:1.00, (B) in the case of any Incremental Facility that is secured on a junior basis to the Initial Facilities, the Secured Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, does not exceed 3.50:1.00 and (C) in the case of any Incremental Facility that is unsecured, the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, is greater than 2.00:1.00 (provided that the amount of Indebtedness for purposes of such calculation of the First Lien Net Leverage Ratio or Secured Net Leverage Ratio, as applicable, shall (1) not include any principal amount of Incremental Facilities and Incremental Equivalent Debt which is being incurred simultaneously or substantially simultaneously by utilizing the Free and Clear Incremental Amount and (2) assume the Incremental Revolving Commitments, if applicable, are fully drawn) (the “Incurrence-Based Incremental ~~Commitments~~Amount”~~; the loans made pursuant to such commitments~~, ~~“Incremental Term Loans”;~~ and ~~the Incremental Term Facilities,~~ together with the ~~Revolving Commitment Increases~~ Free and Clear Incremental Amount and the ~~Term Loan Increases~~Voluntary Prepayment Amount, the “Incremental ~~Facilities~~Availability Amount”)~~; provided~~ . The Borrower may elect to incur any Incremental Facility or Incremental Equivalent Debt by utilizing the Incurrence-Based Incremental Amount, the Free and Clear Incremental Amount, the Voluntary Prepayment Amount, or any combination thereof. For purposes of the forgoing incurrence test, it is understood and agreed that the ~~aggregate amount~~ proceeds of ~~all~~ the applicable Incremental ~~Commitments at any time~~ Facility shall not ~~exceed~~ be netted against the ~~Permitted Incremental Amount~~ applicable to Indebtedness included in the ~~Incremental Commitments at such time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w)~~ calculation of the ~~definition of “Permitted Debt”.~~ First Lien Net Leverage Ratio or Secured Net Leverage Ratio, as applicable. (b) Each such ~~notice~~ Incremental Facility Request shall specify ~~(i)~~ the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments and Incremental Loans shall be ~~effective~~made available, which shall be a date not less than ~~ten~~ five (105) 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~~ (iior such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion). The Borrower shall notify the Administrative Agent in writing of the identity of each Lender or other Person (each, an “Incremental Lender”) to whom the ~~amount~~ Incremental Commitments have been allocated, which allocation shall be made at the Borrower’s sole discretion. Any Lender approached to provide all or a portion of the Incremental Commitments ~~being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment~~ may elect or decline, in its sole discretion, to provide ~~such~~ an Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 the Borrower has no obligation to ~~the extent~~ approach any ~~financial maintenance covenant~~ Lender, and no Lender is ~~added for the benefit of~~ committing to provide any Incremental ~~Term Loans~~ Commitment until such time as such Lender agrees in writing to provide all 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~Commitment), (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (DT Midstream, Inc.)

Incremental Facilities. (a) The Parent Borrower ~~may on~~ and any one or more ~~occasions after~~ Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the ~~Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any~~ amount of their Incremental Term Loans or Revolving Commitments (~~each, a “~~any such increased Revolving ~~Commitment Increase” and the commitments in respect thereof~~Commitments, “Incremental Revolving Commitments~~”), (ii) one~~ ” and any facility under which such Incremental Term Loans or ~~more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~Incremental Revolving Commitments are made available, an “Incremental ~~Term~~ Facility”; ), as applicable, by executing and delivering to the ~~commitments~~ 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 and (iii) in ~~respect thereof “~~the case of Incremental Term ~~Commitments”~~ Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and ~~together with~~ (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, ~~the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the Incremental Term Facilities,~~ together with the ~~Revolving Commitment Increases~~ aggregate principal amount of any Permitted Incremental Equivalent Debt and the outstanding principal amount (or committed amount, if applicable) of any Term ~~Loan Increases~~Loans or Revolving Commitments, shall not exceed $500,000,000 (such amount, the “Incremental ~~Facilities~~Cap”); 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 ; (wB) 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable with respect to any Incremental Term Loans ~~issued on~~ being incurred to finance a Permitted Acquisition designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or ~~prior to the date that~~ Event of Default has occurred and is ~~twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms~~ continuing as of ~~this Agreement, as amended through~~ the date of entry into the applicable acquisition, merger or similar agreement governing such ~~calculation~~acquisition or (y) otherwise, 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 then-remaining Weighted Average Yield as of the ~~Tranche B Term Loans); provided~~applicable Incremental Facility Activation Date, ~~that, if~~ immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving ~~Loans~~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 ~~applicable~~of any Incremental Facility Activation Date, ~~include~~ on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term ~~SOFR~~ 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) 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) each of the representations and warranties made by any Loan Party in or ~~Alternate Base Rate floor~~ pursuant to the Loan Documents shall be true and correct in all material respects (except that any representation or warranty which is ~~greater than~~ 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, as of the ~~Term SOFR~~ date of execution and delivery of the applicable acquisition, merger or ~~Alternate Base Rate floor applicable to any existing Class of~~ similar agreement governing such acquisition (provided that, if agreed by the Lenders providing such Incremental Term Loans, ~~such differential between interest rate floors~~ then at the written election of the Parent Borrower, the only representations and warranties that shall be ~~included~~ 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 ~~calculation~~ 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 ~~Weighted Average Yield for purposes~~ such earlier date)) or (y) otherwise, as of ~~this clause~~ the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the applicable Additional Credit Extension Amendment (iincluding the making of any Incremental Term Loans or Incremental Revolving Commitments (or Revolving Loans in respect thereof) pursuant thereto), ~~but only~~ in each case, unless stated to ~~the extent an increase~~ relate to a specific earlier date, in ~~the Term SOFR or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder~~which case, such representations and ~~in such case the Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans~~ warranties shall be ~~increased to the extent~~ true and correct in all material respects as of such ~~differential between interest rate floors~~earlier date; (iiE) the weighted average life to maturity of any Incremental Term ~~Loans~~ Facility shall be no ~~shorter~~ earlier 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 ~~Tranche B~~ Term ~~Loans)~~Facility; (~~iii~~F) ~~no Incremental Maturity Date of any~~ all Incremental Term ~~Facility~~ 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 earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date)a Person that is not a Loan Party; (ivG) ~~(x) subject~~ except with respect to ~~clauses (ii)~~ pricing and ~~(iii) above~~fees or as otherwise set forth in this Section 2.25(a), 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 ~~other~~ terms of any Incremental Term Facility, if not consistent with the ~~terms of the Tranche B~~ applicable existing Term ~~Facility in any material respect~~Facility, shall be reasonably satisfactory to the Administrative ~~Agent (except for covenants~~ Agent; provided that each Incremental Term Facility shall share ratably in any prepayments of the applicable Term Facility unless the Parent Borrower and ~~terms that apply solely to any period after~~ the ~~latest Maturity Date that is~~ lenders in ~~effect on the effective date~~ respect of such Incremental Term 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)elect lesser payments; (vH) 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 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) [Reserved]. (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, ~~other than as to their Maturity~~ of each Eurocurrency Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurocurrency Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type or Eurocurrency Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Tranche (or, until the expiration of the then-current Interest Period, such other rate as ~~set forth in this Section 2.21~~ shall be agreed upon between the Parent Borrower and the relevant Lender). (~~Incremental Facilities); provided that, notwithstanding~~ d) 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)Agreement, ~~(2) repayments required upon the maturity date~~ each 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 parties hereto hereby agrees that, on ~~a pro rata basis with all other Revolving Commitments on the~~ each Incremental Facility Closing Date~~; and (D) the permanent repayment of Revolving Loans with respect to~~, ~~and termination of, Incremental Revolving Commitments~~ this Agreement 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, amended to the extent ~~agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent~~ (but only to the ~~Borrower’s right~~ extent) necessary to ~~request such Incremental Commitments for a Limited Condition Acquisition shall be limited to~~ reflect the ~~following: (i) (x) on the date of execution~~ existence and terms of the ~~definitive documentation with respect to~~ Incremental Term Loans or Revolving Commitments evidenced thereby. Any 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 amendment may be ~~necessary or appropriate,~~ effected in 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 writing by the Administrative Agent and the Parent Borrower ~~in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse~~ and furnished to the interests 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 thereunderother parties hereto. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Tempur Sealy International, Inc.)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of ~~the same Class as any outstanding~~ Incremental Term Loan ~~(each, a “Term Loan Increase”), or (iii) the addition of one or more 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 (iA) 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative ~~Agent~~ Agent, and (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental Term Loan Commitment, ~~as the case may be) and~~ (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank 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 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, together with the aggregate Dollar Amount (calculated based on the Exchange Rate in effect on the date such Indebtedness is incurred) of all Incremental Equivalent Debt previously (or substantially simultaneously) incurred pursuant to Section 6.01(i), shall not exceed the sum of (A) $200,000,000 plus (b) unlimited additional Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Debt 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 and Incremental Equivalent Notes 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, Incremental Term Loan Commitments and/or Incremental Equivalent Debt are incurred pursuant to this clause (B) concurrently with the incurrence of Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Debt 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, Incremental Term Loan Commitments and/or Incremental Equivalent Debt incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Debt 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 ~~the~~ any Incremental ~~Commitments~~ Revolving Commitment and ~~the Incremental~~ Revolving Loans and other extensions of credit to be made thereunder shall be ~~set forth in an~~ 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 ~~Facility Agreement; provided that, in any event,~~ Term Loans (i) if shall not mature earlier than the ~~Weighted Average Yield applicable to any Incremental Term Loans issued on or~~ Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall be treated substantially the ~~date that is twelve~~ same as (12and in any event no more favorably than) ~~months after~~ the ~~Closing Date exceeds by more than 0.50% per annum~~ Revolving Loans and (iii) shall have the ~~applicable Weighted Average Yield payable pursuant to the terms of this Agreement,~~ same Guarantees as ~~amended through the date of such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B Term Loans~~ and shall ~~automatically be increased to a level such that the Weighted Average Yield~~ rank pari passu with respect to the ~~Tranche B Term Loans is 0.50% per annum below~~ Liens on the ~~Weighted Average Yield~~ Collateral and in right of payment with ~~respect to such Incremental~~ the Revolving 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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 except in the ~~calculation~~ case of ~~Weighted Average Yield for purposes of this~~ clause (i), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) ~~above,~~ to the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ extent that the ~~amortization schedule applicable to any~~ related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be ~~determined by the Borrower~~ subject to a customary intercreditor agreement in form and ~~the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect, shall be~~ substance reasonably satisfactory to the Administrative ~~Agent~~ Agent); provided that (~~except for covenants~~ x) the terms and ~~terms that apply solely~~ conditions applicable to any ~~period~~ tranche of Incremental Term Loans maturing after the ~~latest~~ Maturity Date ~~that is~~ 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 ~~effect on~~ the ~~effective date~~ form of ~~such~~ 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) (it being understood~~ Agreement that ~~to the extent any financial maintenance covenant is added for the benefit of~~ have identical terms and conditions, and any Incremental Term Loans ~~or any~~ made thereunder, shall be designated as a separate series (each a “Series”) of 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 Loan Commitments and 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~~ for all purposes 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 (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) ~~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 (including pro forma effect) to such Incremental Commitments and the making of ~~Incremental~~ Loans and issuance of Letters of Credit 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 of each Loan Party 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 (or, if qualified by materiality or “Material Adverse Effect”, in all respects) on and as of such ~~prior~~ date, (iii) 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~~thereof (and assuming, in 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds case of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Revolving 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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, 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), the Borrower shall be in pro forma compliance with the ~~Financial Covenants~~ financial covenants set forth in Section ~~6.12~~ 6.11, (~~Financial Covenants~~iv) ~~with respect to the Fiscal Quarter of~~ the Borrower ~~most recently ended~~ 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 ~~effectiveness~~ 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 ~~Commitments~~ 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~~ 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 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 (~~iii~~5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall ~~have delivered or caused to have been delivered to~~ be in pro forma compliance with the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent financial covenants set forth in ~~connection with any such transaction. (e)~~ 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 provisions of this ~~Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral~~ Section 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests no consent of any Lender ~~that are made to effectuate changes necessary to enable~~ (other than the Lenders participating in the increase or any Incremental ~~Loans~~ Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant 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 thereunderthis Section 2.20. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series”)~~ Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Lenders, shall automatically be adjusted to give effect thereto. (ge) 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 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 equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in ~~Section 2.21(a~~paragraph (a) above and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to paragraph (~~Incrementa~~e) above.

Appears in 1 contract

Sources: Credit Agreement (Medivation, Inc.)

Incremental Facilities. ~~(a) The Borrower may on~~ On one or more occasions at any time after the Closing Date, the Borrower may by written notice to the Administrative ~~Agent, request:~~ Agent elect to request (iA) an increase ~~in any~~ to the existing Revolving Credit Commitments (~~each~~any such increase, a the “New Revolving ~~Commitment Increase” and the commitments in respect thereof, “Incremental Revolving~~ Credit Commitments”), ) and/or (iiB) the establishment of one or more new term loan commitments of (the ~~same Class as any outstanding Term Loan (each, a~~ “~~Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental~~ New Term Commitments~~” and~~ ”, together with the ~~Incremental~~ New Revolving Credit Commitments, the “Incremental Commitments”~~; the loans made pursuant~~ ), by up to ~~such commitments, “~~an aggregate amount not to exceed $500,000,000 for all Incremental ~~Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the “Incremental Facilities”); provided~~ Commitments (so that the ~~aggregate~~ sum of the Maximum Revolving Credit Amount plus the principal amount of ~~all the Incremental~~ Term Commitments ~~at any time shall~~ made hereunder does 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”$1,500,000,000). Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the Borrower proposes that ~~the~~ 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 to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent ~~and (ii)~~ and/or its Affiliates shall use commercially reasonable efforts, with the ~~amount~~ assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental ~~Commitments being requested (it being agreed~~ 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 ~~any~~ all or a portion of the Incremental ~~Commitment~~ 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 Credit Lender” or “New Term Lender,” as applicable) to whom any portion of such Incremental Commitment ~~(and any such Lender that fails to respond to such approach~~ shall be ~~deemed~~ allocated shall be subject to ~~have declined~~ the approval of the Borrower and the Administrative Agent (such approval not to ~~provide such Incremental~~ be unreasonably withheld or delayed), and, in the case of a New Revolving Credit Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments Issuing Bank and the ~~Incremental Loans to~~ Swingline Lender (each of which approvals shall not be ~~made thereunder shall be set forth in~~ unreasonably withheld), unless such New Revolving Credit Lender is an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 existing Lender (other than a ~~shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into~~ Defaulting Lender) with a Revolving Credit Commitment at such time or ~~required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that~~ such New Term Lender is ~~shorter than the then-remaining Weighted Average Yield~~ an existing Lender or an Affiliate of ~~the Tranche B Term Loans); provided, that, if~~ an existing Lender. The terms and provisions of any ~~Incremental Term Loans or Incremental~~ New Revolving Loans, 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 Credit Commitments shall be ~~included in the calculation of Weighted Average Yield for purposes of this clause (i), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable~~ identical to the existing Revolving Credit Commitments. The terms and provisions of any New Term ~~Loans would cause an increase in the interest rate then in effect thereunder,~~ Commitments and ~~in such case the Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing~~ any New Term Loans shall ~~be increased to~~ (a) provide that the ~~extent of such differential between interest rate floors; (ii) the weighted average life to~~ maturity date of any ~~Incremental~~ New Term ~~Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche B Term Loans (without giving effect to prior prepayments~~ Loan that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which is a separate tranche shall be no earlier than the ~~initial Tranche B~~ Term Maturity ~~Date);~~ Date and shall not have any scheduled amortization payments, (ivb) ~~(x) subject to clauses (ii) and (iii) above~~share ratably in any prepayments of the existing Term Facility, ~~the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any Incremental Facility shall be determined by~~ unless the Borrower and the ~~Incremental~~ New Term Lenders in respect of such New Term Loans elect lesser payments and (yc) ~~all other terms of any Incremental~~ otherwise be identical to the existing Term ~~Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect, shall be~~ Loans or reasonably ~~satisfactory~~ acceptable 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 each New 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 Lender. 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~~ availability 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 borrowings under 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 satisfaction of the ~~Incremental Revolving Commitments and~~ following conditions precedent: (3x) ~~repayment made in connection with a permanent repayment and termination of commitments (subject~~ after giving pro forma effect 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 borrowings and the ~~Administrative Agent; provided that no Incremental Commitments shall become effective unless~~ use of proceeds thereof, (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 Potential Event of Default or Event of Default shall ~~have occurred~~ exist 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~~ of the ~~Lenders providing~~ last day of the ~~relevant Incremental Facility~~ most recent calendar quarter for which financial statements have been delivered pursuant to Section 8.2, the Borrower would have been in ~~connection~~ compliance with ~~any Limited Condition Acquisition~~ the financial covenants set forth in Section 10.1 and Section 10.12; (~~which shall be governed by clause (d~~y) ~~below), on the date of effectiveness thereof,~~ the representations and warranties ~~set forth~~ made or deemed made by the Borrower in ~~Article III and in the other~~ any 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 Document shall be true and correct in all material respects on the effective date of such Incremental Commitments except to the extent 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 ~~prior~~ earlier date); and (z) the Administrative Agent shall have received each of the following, in form 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 all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments; and (ii) a customary opinion of counsel to the Borrower (which may be in substantially the same form as delivered on the Closing 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. On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such ~~Incremental~~ assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to its New Revolving Credit Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Commitments are effected, subject to the ~~making~~ satisfaction of ~~Incremental Loans~~ the foregoing terms and ~~other extensions of credit thereunder~~ conditions, (i) each New Term Lender shall make a Loan to ~~be made on the date of effectiveness thereof,~~ the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment, and (ii) each New Term Lender shall ~~be in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants)~~ become a Lender hereunder with respect to the ~~Fiscal Quarter~~ New Term Commitment and the New Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the ~~Borrower most recently ended~~ Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Credit Commitments and the New Revolving Credit Lenders or the New Term Commitments and the New Term Lenders, as ~~of the date of effectiveness of such Incremental Commitments on a pro forma basis~~ applicable, and (ivz) in the ~~Borrower shall have delivered or caused~~ case of each notice to ~~have been delivered~~ any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, in each case subject to the ~~Administrative Agent~~ assignments contemplated by this paragraph. The fees payable by Borrower upon any such ~~customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as~~ increase in the Commitments shall ~~reasonably~~ be ~~requested~~ agreed upon by the Administrative Agent ~~in connection with any~~ and Borrower at the time of such ~~transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (~~increase. The Incremental ~~Facilities)~~ Commitments shall be evidenced pursuant to one or ~~in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed~~ more Additional Credit Extension Amendments executed and delivered by the ~~applicable Lenders providing such Incremental Commitments~~Borrower, the conditions precedent to the Borrower’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 AcquisitionNew Revolving Credit Lenders or New Term Lenders, ~~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~~ as applicable, and the ~~funding of the applicable Incremental Loans~~Administrative Agent, ~~(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~~ each of which shall be ~~a condition to funding such Incremental Loans shall be~~ recorded in the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) Register. Each ~~Incremental Facility Agreement~~ Additional Credit Extension Amendment may, without the consent of any ~~Lender~~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 ~~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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.1(e). (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Washington Prime Group, L.P.)

Incremental Facilities. Following the Agreement Date, AGCO may from time to time through the Maturity Date, propose that (a) ~~The Borrower may on one~~ term loans (or ~~more occasions after~~ commitments therefor) in U.S. Dollars or the ~~Closing Date~~Equivalent Amount in the requested Offshore Currency be made to it or any of the other Borrowers in accordance with this Section (each, an "Incremental Term Loan") or (b) the aggregate amount of Revolving Loan Commitments be increased (each an "Incremental Revolving Commitment") by ~~written notice~~ delivering a Notice of Incremental Facility to the Administrative ~~Agent~~Agent substantially in the form of Exhibit E hereto (a "Notice of Incremental Facility"), ~~request:~~ specifying (subject to the restrictions set forth in clause (b) below) therein the (i) ~~an increase~~ amount of the Tranche of Incremental Term Loans (or commitments therefor) or Incremental Revolving Commitments requested (which Tranche shall, unless otherwise approved by the Lenders making such Incremental Term Loans (or commitments therefor) or providing such Incremental Revolving Commitments, be in ~~any~~ a minimum principal amount of $100,000,000 and integral multiples of $50,000,000 in excess thereof (or in each case the Equivalent Amount in the requested Offshore Currency)), (ii) requested closing date of such proposed Incremental Term Loans (or commitments therefor) or Incremental Revolving Commitments (~~each, a “Revolving Commitment Increase” and~~ which shall be at least 15 Business Days from the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments~~ date of delivery of the ~~same Class as any outstanding Term Loan (each, a “Term Loan Increase”~~Notice of Incremental Facility), or (iii) the ~~addition of one or more new tranches of term loans (each, an “~~interest rate to be applicable to all Incremental Term ~~Facility”;~~ Loans in such Tranche, and (iv) the ~~commitments in respect thereof “~~amount of any upfront or closing fees to be paid by the Borrowers to the Lenders funding such Tranche of Incremental Term ~~Commitments” and together with the~~ Loans (or commitments therefor) or providing such 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 . Each Notice of Incremental ~~Equivalent Indebtedness incurred pursuant to clause (w)~~ Facility delivered by AGCO shall be binding upon all Loan Parties. At the time of delivery of the ~~definition~~ Notice of ~~“Permitted Debt”. Each such notice~~ Incremental Facility, AGCO 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered also deliver to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a ~~Lender, an Affiliate~~ certificate of a ~~Lender or an Approved Fund must be an Eligible Assignee~~ Responsible Employee of AGCO certifying (A) that AGCO and ~~must be reasonably acceptable to~~ its Subsidiaries are in compliance with the ~~Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be~~ financial covenants set forth in ~~an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months~~ Section 6.10 hereof before and after the Closing Date 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, then the Applicable Margin then in giving 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~~ Term Loan Borrowing (~~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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 Facilitiescommitments therefor) or ~~otherwise: (A) any~~ such Incremental Revolving Commitments ~~or Incremental Revolving Loans shall rank pari passu~~ (in ~~right~~ each case, as if fully drawn) on a pro forma basis as of ~~payment~~ the end of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders, 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~~ then exists or would 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 transactionthereby. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Agco Corp /De)

Incremental Facilities. (a) The Parent Borrower ~~may on~~ and any one or more ~~occasions after the Closing Date~~Lenders (including New Lenders) may from time to time agree that such Lenders shall make, ~~by written notice~~ obtain, pursuant to ~~the Administrative Agent, request:~~ an Incremental Facility Amendment (i) ~~an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii)~~ add one or more ~~new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches~~ additional tranchesnew Classes of term loans facilities and/or increase the principal amount of theirthe Term Loans (~~each~~which may be effected by increasing the amount of any thenof any existing Facility of Term Loans) (any such Term Loans or additional tranche of term loans eachor Class (any such new Class or increase, an “Incremental Term Facility”~~; the commitments in respect thereof “Incremental Term Commitments”~~ ) or and ~~together with the Incremental Revolving Commitments, the “Incremental Commitments”; the~~ any loans made pursuant to ~~such commitments~~an Incremental Term Facility, “Incremental Term Loans”~~; and~~ ) and/or (ii) increase the aggregate amount of the Revolving Commitments (any such increase, an “Incremental Revolving Facility”, together with any 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~~ , as applicable, by executing and delivering to the Administrative Agent an 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~~ Facility Activation Notice specifying (i) the ~~date on which~~ amount of such increase and the ~~Borrower proposes that~~ Facility or Facilitates involved, (ii) the applicable Incremental ~~Commitments shall be effective,~~ Facility Closing Date (which shall be a date not less than ten (10) Business Days ~~(or such shorter period as may be agreed to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)) and (iiiii) in the case of Incremental Term Loans, (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and (z) the Applicable Margin for such Incremental Term Loans; provided, that (i) the aggregate principal amount of all Incremental Facilities established on any date after the Sixth Amendment Effective Date shall not exceed the sum of (x) an amount equal to the Base Incremental ~~Commitments being requested~~ Amount on such date, plus (y) an additional amount equal to the Voluntary Prepayment Amount on such date plus (z) an additional amount equal to the Maximum Incremental Ratio Amount as of such date (the sum of the amounts in clauses (x), (y) and (z), the “Incremental Availability Amount”) (it being ~~agreed~~ understood that (xA) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and any such Lender that fails to respond to such approach the applicable Borrower shall be deemed to have ~~declined~~ utilized amounts under clauses (y) and/or (z) above prior to ~~provide~~ utilization of amounts under clause (x) above, and if the applicable Borrower does not make an election, the applicable Borrower shall be deemed to have elected clause (z), (B) the proceeds from any incurrence under such ~~Incremental Commitment,~~ clauses may be utilized in a single transaction by first calculating the incurrence under clauses (y) and/or (z) above and then calculating the incurrence under clause (x) above (it being understood that any amounts incurred under clauses (x) and/or (y) above concurrently with amounts incurred under clause (z) above will not count as Indebtedness for the ~~case may be~~purposes of calculating the applicable ratio in clause (z) thereof at the time of such concurrent incurrence) and (C) the Parent Borrower may reclassify utilizations among clauses (x), (y) ~~any Person that~~ and (z) above if, at the time of such reclassification, the Parent Borrower ~~proposes~~ would be permitted to ~~become an Incremental Lender~~incur the aggregate principal amount of Indebtedness being so reclassified), ~~if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to~~ (ii) unless otherwise agreed by the Administrative Agent). , each Incremental Facility shall be in a minimum aggregate principal amount of $10,000,000, (biii) ~~The terms~~ the Loans in respect of any Incremental Facility and ~~conditions~~ all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on a pari passu basis with all of the ~~Incremental Commitments~~ other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental ~~Loans to be made thereunder~~ Facility and all other obligations in respect thereof shall be ~~set forth~~ pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in ~~an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to~~ respect of any Incremental Term Facility will be entitled to prepayments on the same basis as the Term B Loans ~~issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum~~ unless the applicable ~~Weighted Average Yield payable pursuant to~~ Incremental Facility Activation NoticeAmendment specifies a lesser treatment, (v) except in the case of a bridge loan the terms of which provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this ~~Agreement~~clause (v), ~~as amended through the date of~~ such ~~calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B~~ Incremental Term Loans shall ~~automatically be increased~~ have a final maturity no earlier than the Latest Maturity Date of the Term B Facility (determined immediately prior 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~~ incurrence of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans)~~; provided~~, that, if any Incremental Term Loans or Incremental Revolving Loans, 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 (vi) except in the ~~calculation~~ case of ~~Weighted Average Yield~~ a bridge loan the terms of which provide for ~~purposes~~ an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this clause (ivi), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the weighted average life to maturity of ~~any~~ such Incremental Term ~~Loans~~ Facility shall be no shorter than ~~the remaining weighted average life~~ that of any existing Term B Loans (except if required in order to ~~maturity of the Tranche B~~ make such Incremental Term Loans ~~(without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche~~ fungible with any outstanding Term B ~~Term~~ Loans); , (~~iii~~vii) ~~no Incremental Maturity Date of any Incremental Term Facility shall be earlier than~~ the ~~initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings~~interest rates, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate marginscurrency, discounts, premiums, rate floors, fees and ~~the~~ (subject to clauses (v) and (vi) above) amortization schedule applicable to ~~any~~ such Incremental Term Facility shall be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or other fees paid to all lenders or interest rate floors)all-in yield for any Incremental Term Facility denominated in Dollars incurred prior to the date that is six (6) months after the Sixth Amendment Effective Date shall be more than 50 basis points higher than the corresponding all-in-yield (giving effect to interest rate margins, original issue discount, upfront fees or other fees paid to all lenders and interest rate floors) for any then existingall-in yield for any then-existing Sixth Amendment Term B Loans as determined by the Administrative Agent in accordance with standard market practices, then the all-in-yieldall-in yield with respect to the outstanding Sixth Amendment Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yieldall-in yield with respect to the Incremental Term Facility and the all-in-yieldall-in yield on the outstanding Sixth Amendment Term B Loans is equal to 50 basis points (this proviso, the “MFN Provision”), (viii) any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility; provided that to the extent that (subject to clauses (iv) through (vii) above) the terms and ~~(y) all other terms~~ documentation of any Incremental Term ~~Facility, if~~ Facility are not consistent with the terms and documentation of the ~~Tranche~~ Sixth Amendment Term B ~~Term Facility in any material respect~~FacilityLoans, they shall be reasonably satisfactory to the Administrative Agent and (~~except for covenants~~ ix) any Incremental Revolving Facility shall be on terms and ~~terms that apply solely~~ pursuant to ~~any period after~~ documentation applicable to the ~~latest Maturity Date that is~~ Revolving Facility (including the maturity date in ~~effect on the effective date of such Incremental Facility Agreement~~respect thereof) (it being understood ~~that~~ that, if required to consummate an Incremental Revolving Facility, the applicable Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility for all Revolving Lenders under the Revolving Facility, but additional upfront or similar fees may be payable to the ~~extent~~ lenders participating in such Incremental Revolving Facility without any ~~financial maintenance covenant is added for the benefit of~~ requirement to pay such amounts to any existing Revolving Lenders that do not participate in such Incremental Revolving Facility). No Lender shall have any obligation to participate in any Incremental ~~Term Loans or~~ Facility unless it agrees to do so in its sole discretion., and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental ~~Term Commitments~~Facility). (b) Any additional bank, no financial institution or other entity which, with the consent ~~shall be required from~~ of the applicable Borrower and 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 which consent 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 outstandingsunreasonably withheld), ~~(2) repayments required upon the maturity date of the Incremental Revolving Commitments and (3) repayment made in connection with~~ elects to become 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 “Lender” under this Agreement in connection with any ~~Limited Condition Acquisition~~ transaction described in Section 2.24(a) shall execute a New Lender Supplement (~~which shall be governed by clause (d) below~~each, a “New Lender Supplement”), 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 substantially in the form of Exhibit I-2 or in such other ~~Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified~~ form 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered is reasonably acceptable to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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~~for the avoidance of doubt, ~~amendments~~ the Second Amendment), whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the ~~Mortgages and datedown endorsements to the title policies) and such technical amendments~~ same extent 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, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be if originally 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 party hereto and shall be bound by ~~all agreements, acknowledgements~~ and ~~other obligations of Lenders (or Lenders in respect of Commitments and Loans of~~ entitled to 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 Commitments and Incremental Loans for all purposes benefits 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Ultra Clean Holdings, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, at any time other than during the Covenant Relief Period, on one or more occasions on or after the ~~Closing Date~~Funding Date pursuant to an Incremental Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such commitments, ~~by written notice~~ “Incremental Term Commitments” and any such new Class or increase, an “Incremental Term Facility” and any loan made pursuant to any Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the ~~Administrative Agent~~aggregate amount of the Revolving Commitments (an “Incremental Revolving Facility” and, ~~request:~~together with any Incremental Term Facility, “Incremental Facilities”; the commitments thereunder, the “Incremental Revolving Commitments” and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed the Incremental Available Amount; provided that, (i) no Incremental Facility may be in an ~~increase in any Revolving Commitments~~ amount that is less than $5,000,000 (~~each, a “Revolving Commitment Increase” and~~ or such lesser amount to which the ~~commitments in respect thereof, “Incremental Revolving Commitments”~~Administrative Agent may reasonably agree), (ii) ~~one or more new term loan commitments of~~ except as the ~~same Class as~~ Borrower and any ~~outstanding Term Loan (each~~Lender may separately agree, ~~a “Term Loan Increase”)~~no Lender shall be obligated to provide any Incremental Commitment, or (iii) the addition of one or more 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached determination to provide any Incremental Commitment ~~may elect~~ shall be within the sole and absolute discretion of such Lender, (iii) no Incremental Facility or ~~decline~~Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its ~~sole discretion~~capacity, ~~to provide such~~ if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan, (~~and~~ iv) except as otherwise permitted herein the terms of 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 Borrower proposes to become an Incremental Lender~~Term Facility, if ~~such Person is~~ not ~~then a Lender~~substantially consistent with those applicable to any then-existing Term Loans, ~~an Affiliate of a Lender or an Approved Fund~~ must be ~~an Eligible Assignee and must be~~ (x) reasonably acceptable to the Administrative ~~Agent).~~ Agent or (by) ~~The terms and conditions of~~ only applicable to the ~~Incremental Commitments and~~ period after the ~~Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event~~Latest Maturity Date, (iv) if each Incremental Revolving Facility shall have the ~~Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more~~ same terms, other than ~~0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement~~upfront fees, as ~~amended through~~ the Revolving Facility, (vi) the final maturity date ~~of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 Incremental Term Loans shall be ~~increased to~~ no earlier than the ~~extent of such differential between interest rate floors;~~Maturity Date, (iivii) the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of any Incremental Term ~~Loans~~ Facility shall be no shorter than the remaining ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~the Tranche B~~ any then-existing tranche of Term Loans (without giving effect to ~~prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans~~any prepayment thereof);, (iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (xviii) subject to clauses (iivi) and (~~iii~~vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility, (ix) subject to clause (v) above, the ~~pricing,~~ pricing (including interest rate ~~margins, discounts, premiums, rate floors, fees~~ and ~~the amortization schedule applicable to~~ fees) of any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental ~~Lenders and~~ Facility, (yx) ~~all other terms of any~~ (A) each Incremental Term ~~Facility, if not consistent~~ Facility or Incremental Revolving Facility shall rank (i) on a pari passu basis with ~~the terms of the Tranche B Term Facility in any material respect, shall be reasonably satisfactory~~ or on a junior basis 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 and Revolving 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 and (ii) on a pari passu basis with ~~any remaining portion~~ the Term Loans and Revolving Loans in right of ~~the Facilities and, with respect to~~ security ~~with any remaining portion of the Facilities, pari passu, junior~~ or shall be unsecured and ~~shall~~ (B) no Incremental Facility may be (x) guaranteed by any Person which is not be a Loan Party or (y) 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);Collateral, (~~vii~~xi) 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)Section 1.12, no Default or Event of Default shall ~~have occurred and be continuing on the date of effectiveness thereof, both~~ exist immediately prior to ~~and immediately~~ or after giving effect to such Incremental ~~Commitments~~ Facility, and ~~the making of Incremental Loans thereunder to be made on such date,~~ (iiB) 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 of the Loan Parties (or, if agreed to by the lenders thereof, customary “SunGard” representations and warranties) set forth in ~~Article III~~ this Agreement and in the other Loan Documents shall be true and correct in all material respects (Aor if qualified by materiality or Material Adverse Effect, in all respects) ~~in the case~~ on and as of the date such Incremental Facility becomes effective with the same effect as though such representations and warranties ~~qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case,~~ had been made on and as of such date; provided that, ~~except in~~ to the ~~case of~~ extent that any ~~such~~ representation and warranty ~~that expressly relates~~ specifically refers to a ~~prior date~~given date or period, ~~in which case such representation and warranty~~ it shall be true and correct in all material respects as of such ~~prior date,~~ date or for such period; (~~iii~~xii) ~~after giving effect to such~~ any Incremental ~~Commitments and the making~~ Term Facility shall participate (A) in any voluntary prepayment of ~~Incremental~~ Term 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~~ as set forth in Section ~~6.12~~ 2.11(a) and (~~Financial Covenants~~B) ~~with respect~~ in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) and (c), in each case, to the ~~Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of~~ extent provided in such Incremental Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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.Sections, (dxiii) ~~Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if~~ the proceeds of any Incremental Facility ~~are intended to~~ may be ~~applied to finance a Limited Condition Acquisition~~used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: and (~~i) (x~~xiv) on the date of ~~execution~~ the Borrowing of any Incremental Term Loans that will be of the ~~definitive documentation with respect~~ same Class as any then-existing Class of Term Loans, and notwithstanding anything to ~~such Limited Condition Acquisition, all~~ the ~~requirements~~ contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (~~c)(i~~a)(xiv) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and ~~(ii) above shall be satisfied and (y)~~ which ends on the last day of such Interest Period. (b) Incremental Commitments may be provided by any existing Lender, or by any other eligible assignee (any such other lender being called an “Incremental Lender”); provided that, the Administrative Agent (and, in the case of any Incremental Revolving Facility, each Issuing Bank) shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.04 for an assignment of Loans to such Incremental Lender, mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment. (c) Each Lender or Incremental 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 Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of ~~closing~~ such Incremental Commitment, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement. (d) As conditions precedent to the effectiveness of ~~such Limited Condition Acquisition and~~ any Incremental Facility or the ~~funding~~ making of ~~the applicable~~ any Incremental Loans, (Ai) ~~no Event~~ upon its request, the Administrative Agent shall be entitled to receive customary written opinions of ~~Default under Section 7.01(b)~~counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (c)ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (giii) the Administrative Agent, on behalf of the Incremental Lenders, or ~~(h) (Events of Default)~~the Incremental Lenders, as applicable, shall have ~~occurred and be continuing and~~ received the amount of any fees payable to the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (Biv) subject to Section 2.20(h), the ~~only representations and warranties~~ Administrative Agent shall have received a Borrowing Request as if the ~~accuracy~~ relevant Incremental Loans were subject to Section 2.03 or another written request the form of which ~~shall be a condition~~ is reasonably acceptable to ~~funding such Incremental Loans shall be~~ the ~~Specified Representations~~ Administrative Agent (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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~~ requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and ~~warranties~~ (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Financial Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower and (B) to the extent applicable, certifying that the condition set forth in clause (Ba)(xi) ~~shall~~ above has been satisfied. (e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.20: (i) each Revolving Lender immediately prior to such increase will automatically and without further act be ~~conditions~~ deemed to ~~funding~~ have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such ~~Incremental Loans on~~ Revolving ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such ~~closing date; (ii)~~ that, after giving effect to ~~such~~ each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental ~~Commitments and the making~~ Revolving Facility Lender) participations hereunder in Letters of ~~Incremental Loans and other extensions of credit thereunder to~~ Credit shall be ~~made~~ held on a pro rata basis on the ~~date~~ basis of ~~effectiveness thereof~~their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); and (ii) the existing Revolving Lenders shall assign Revolving Loans to certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the ~~Borrower~~ Revolving Lenders providing the relevant Incremental Revolving Facility) shall be purchase such Revolving Loans, in ~~compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect~~ each case to the ~~Fiscal Quarter~~ extent necessary so that all of the ~~Borrower most recently ended as~~ Revolving Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); 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 (ii). (f) On the date of effectiveness of ~~such~~ any Incremental ~~Commitments on a pro forma basis and (iii)~~ Revolving Facility, the ~~Borrower~~ maximum amount of LC Exposure permitted hereunder shall ~~have delivered or caused to have been delivered to~~ increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent ~~such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates~~ and ~~other documents as shall reasonably be requested by~~ the relevant Issuing Bank. (g) The Lenders hereby irrevocably authorize the Administrative Agent ~~in connection with~~ to enter into any ~~such transaction. (e) Each~~ Incremental ~~Facility Agreement may, without the consent of~~ Amendment and/or any ~~Lender, effect such amendments~~ amendment to ~~this Agreement and the~~ any other Loan ~~Documents~~ Document as may be necessary in order to establish new Classes or ~~appropriate~~sub-Classes in respect of Loans or commitments pursuant to this Section 2.20, in 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 Borrower in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, ~~including any~~ in each case on terms consistent with this Section 2.20 and such other amendments ~~that~~ as are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender described 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. 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 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 AgreementSection 9.02. (h) ~~The~~ Notwithstanding anything to the contrary in this Section 2.20 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Permitted Acquisition or other similar Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (i) This Section 2.20 shall supersede any provision in Section 9.02 to the contrary. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent ~~shall notify~~ and the ~~Lenders promptly upon receipt~~ Borrower to effect the provisions of or be consistent with this Section 2.20. Any such amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) but without the consent of any ~~notice from~~ other Lender (other than the ~~Borrower referred~~ Incremental Lenders providing such Incremental Facility), and furnished to ~~in Section 2.21(a) (Incrementa~~the other parties hereto.

Appears in 1 contract

Sources: Credit Agreement (Waldencast PLC)

Incremental Facilities. (a) The Borrower may on (A) prior to the Revolving Credit Termination Date of any Class, increase the aggregate outstanding amount of the existing Revolving Credit Commitments of such Class and/or establish one or more ~~occasions after~~ additional Class or Classes of revolving credit commitments (any such increase or new revolving credit commitments, the ~~Closing Date~~“New Revolving Credit Commitments” and the revolving loans made thereunder, the “New Revolving Loans”) and/or (B) increase the aggregate outstanding principal amount of the Term Loans of any Class and/or establish one or more Classes of new term loan commitments (any such increase or new term loan commitment, the “New Term Loan Commitments” and the term loans made thereunder, the “New Term Loans”), in each case by ~~written notice~~ delivering a Commitment Amount Increase Notice (a “Commitment Amount Increase Notice”) substantially in the form attached hereto as Exhibit H or in such other form reasonably acceptable to the Administrative ~~Agent~~Agent at least three (3) Business Days prior to the stated effective date, ~~request:~~ unless the Administrative Agent shall have determined in its sole discretion to accept such Commitment Amount Increase Notice on such effective date (the “Increased Amount Date”) such increase or new commitment (the “Commitment Amount Increase”) identifying (i) ~~an increase in~~ any ~~Revolving Commitments~~ existing Lenders and/or any new lender(s) (each, a “New Revolving ~~Commitment Increase~~Lender” ~~and the commitments in respect thereof,~~ or “~~Incremental Revolving Commitments”)~~New Term Lender, ~~(ii) one or more new term loan commitments of the same Class~~ ” as ~~any outstanding Term Loan (each, a “Term Loan Increase”~~applicable), ~~or (iii)~~ subject, in the ~~addition~~ case of ~~one or more new tranches of term loans (each~~New Revolving Lenders and New Term Lenders, 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~~ reasonable consent 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent (and in the case of any New Revolving Lenders, the Swing Line Lender and L/C Issuer) to the extent such consent would be required under Section 13.12 in respect of an assignment hereunder and (ii) the amount of ~~the Incremental~~ such Lender’s New Revolving Credit Commitment or New Term Loan Commitments ~~being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline,~~ and in ~~its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate~~ of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental New Term Loans ~~issued on or prior to the date~~ that ~~is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms~~ are part of this Agreement, as amended through the date of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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 an existing Class of Term Loans, identifying such ~~differential between interest rate floors~~ existing Class of Term Loans; provided, however, that (i) any Commitment Amount Increase shall be ~~included~~ in an amount not less than $5,000,000 (or such lesser amount which shall be approved by the ~~calculation of Weighted Average Yield for purposes of~~ Administrative Agent or represents all remaining availability under the limit set forth in this clause (i)) and in the aggregate for all such increases not greater than (A) $140,000,000 (less the aggregate amount outstanding of Incremental Equivalent Debt incurred pursuant to clause (i)(x) of the proviso to Section 8.7(o)), ~~but only~~ plus (B) in the case of any Commitment Amount Increase that effectively extends the Revolving Credit Termination Date or any maturity date with respect to any Class of Loans or commitments hereunder, an amount equal to the ~~extent an increase in~~ prepayment to be made with respect to any Term Loans and/or the ~~Term SOFR or Alternate Base Rate floor applicable~~ permanent commitment reduction to be made with respect to the ~~existing Term Loans would cause~~ Revolving Credit Facility, in each case to be replaced with such Commitment Amount Increase, plus (C) additional amounts so long as, after giving effect to such additional amounts, the Secured Leverage Ratio does not exceed 3.60:1.00, calculated on a Pro Forma Basis (which (i) if in connection with an ~~increase in~~ Acquisition, as of the ~~interest rate then in effect thereunder~~last day of the most recent fiscal quarter for which financial statements are available prior to the date of the definitive documentation for such Acquisition (or, ~~and in such case the Term SOFR or Alternate Base Rate floors (but not~~ if earlier, the applicable ~~rate) applicable to the existing Term Loans shall be increased to the extent of such differential between interest rate floors;~~ Increased Amount Date), (ii) ~~the weighted average life~~ shall assume that all debt incurred pursuant to ~~maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity~~ this Section 1.16 and clause (i)(y) of the ~~Tranche B Term Loans (without giving effect~~ proviso to ~~prior prepayments that would otherwise modify~~ Section 8.7(o) is secured on a pari passu basis with the ~~weighted average life to maturity~~ Credit Facilities and, if consisting of the 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 (other than an earlier maturity date for customary bridge financingsrevolving commitments, ~~which~~is fully drawn, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) ~~above,~~ shall exclude from the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ “net debt” portion of such Pro Forma calculation the ~~amortization schedule applicable to any Incremental Facility shall be determined by~~ cash proceeds from the borrowing of the Commitment Amount Increase) (with the Borrower ~~and the Incremental Lenders and (y) all other terms of any Incremental Term Facility~~to select, if not consistent with the terms of the Tranche B Term Facility in any 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~~ Commitment Amount Increase is ~~added for the benefit of any Incremental Term Loans or any Incremental Term Commitments~~obtained, 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: utilization under clauses (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~~in its sole discretion), (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 (iii) except as otherwise agreed by the ~~Lenders~~ lenders providing ~~the relevant Incremental Facility~~ such Commitment Amount Increase as New Term Loans in connection with ~~any Limited Condition~~ an Acquisition permitted hereunder, (~~which shall be governed by clause (d~~x) ~~below),~~ no Default or Event of Default shall have occurred and be continuing on the ~~date of effectiveness thereof,~~ Increased Amount Date (both ~~immediately~~ prior to and ~~immediately~~ after giving effect to such ~~Incremental Commitments~~ Commitment Amount Increase) and ~~the making~~ (y) each 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~~ herein and in the other Loan Documents shall be true and correct in all material respects (~~A) in the case of the representations and warranties qualified as to materiality,~~ or in all respects ~~and~~ if otherwise qualified by “material” or “material adverse effect”) as of said time, except to the extent the same expressly relate to an earlier date (~~B) otherwise,~~ in ~~all material respects, in each~~ which 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~~ earlier date), and (iii) with respect to any Commitment Amount Increase in respect of New Revolving Credit Commitments, the material terms (other than with respect to interest, discounts, maturity and fees) shall, subject to clause (B) below, be substantially identical to those applicable to the existing Revolving Credit Commitments (or otherwise reasonably acceptable to the Administrative Agent); provided, that: (A) the applicable maturity date of such New Revolving Credit Commitment shall be no earlier than the Revolving Credit Termination Date of the then outstanding Revolving Loans; and (B) any other material terms (other than with respect to margin, discounts, pricing, maturity or fees) with respect to any New Revolving Credit Commitments that are not substantially identical to the existing Revolving Credit Commitments shall be applicable only after the Revolving Credit Termination Date applicable to the existing Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent. (iv) New Term Loans borrowed hereunder may be part of an existing Class of Term Loans, in which case such New Term Loans shall have all of the same terms and conditions as such existing Term Loans, or may constitute a new Class of Term Loans, in which case such New Term Loans shall have such terms and conditions as the Borrower and the applicable New Term Lenders shall agree; provided, however, (A) the applicable maturity date of any such New Term Loans shall be no earlier than the final maturity date of the then outstanding Term Loans, (B) the Weighted Average Life to Maturity of all New Term Loans shall be no shorter than the Weighted Average Life to Maturity of the existing Term Loans, (C) the interest rate applicable to the New Term Loans shall be determined by the Borrower and the applicable New Term Lenders; provided, however, that the interest rate (as determined by the Administrative Agent in accordance with this clause (C) and in consultation with the Borrower) applicable to any such New Term Loans shall not be greater than 50 basis points above the applicable interest rate (including the Applicable Margin) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Term Loans unless the interest rate applicable to the existing Term Loans is increased (which increase shall not require the consent of any Lender or the Borrower) to the extent necessary so that the interest rate applicable to such New Term Loans is no greater than 50 basis points above the interest rates of the existing Term Loans; provided, that in determining the applicable interest rate: (x) margins as well as all upfront and similar fees and original issue discount paid in the primary syndication of the Commitment Amount Increase or the existing Term Loans (based on (x) an assumed four year average life to maturity for the applicable facilities or (y) if the stated maturity of the applicable facilities is less than four years, the actual life to maturity of such facilities), and any amendments to the Applicable Margin under this Agreement that became effective subsequent to the Closing Date but prior to the time of such Commitment Amount Increase shall be included in such calculation, (b) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their affiliates) in its capacity as such in connection with any of the existing Term Loans or to one or more arrangers (or their affiliates) in their capacities as applicable to any Commitment Amount Increase shall be excluded from such calculation and (c) if the New Term Loans include an interest rate floor greater than that applicable to the existing Term Loans or Revolving Credit Commitments, such excess amount shall be equated to interest margin for determining the increase, and (D) the New Term Loans shall share ratably in any prepayments of the existing Term Loans unless the Borrower and the Lenders in respect of the New Term Loans elect lesser payments; and (v) the New Revolving Credit Commitments and/or New Term Loan Commitments will rank pari passu in right of payment and pari passu with respect to Liens on any Collateral with the existing Revolving Credit Commitments or existing Term Loans. (b) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new series of Term Loans or new revolving credit commitments on an Increased Amount Date shall be designated a separate Class of Term Loans or Revolving Loans, as applicable, for all purposes of this Agreement. (c) On any Increased Amount Date on which New Term Loans are made that constitute an increase to an existing Class of Term Loans (with all of the same terms and conditions as such existing Class of Term Loans), subject to the satisfaction of the foregoing terms and conditions, (i) each applicable existing Term Loan Lender and New Term Lender of such Class shall make a New Term Loan to the Borrower in an amount equal to its New Term Loan Commitment of such Class (it being understood that any New Term Loan Facility may provide for delayed draw term loans to be made on a date after the Increased Amount Date), (ii) any New Term Loan made by an existing Term Loan Lender and/or a New Term Lender pursuant to a Commitment Amount Increase shall be deemed a “Term Loan” for all purposes of this Agreement and (iii) each New Term Lender with a New Term Loan shall become a Lender with respect to such Class of New Term Loans and New Term Loan Facility and all matters relating thereto. (d) On any Increased Amount Date (or such later date as shall be applicable to any delayed draw Term Loan) on which any New Term Loans are made that constitute a new Class of Term Loans, subject to the satisfaction of the foregoing terms and conditions, (i) each applicable existing Term Loan Lender and New Term Lender of such Class shall make a New Term Loan to the Borrower in an amount equal to its New Term Loan Commitment (or, in the case of any delayed draw Term Loan, relevant portion thereof) of such Class, (ii) any New Term Loan of such Class made by an existing Term Loan Lender and/or a New Term Lender pursuant to a Commitment Amount Increase shall be deemed a “Term Loan” made pursuant to a separate Class of Term Credit Facility for all purposes of this Agreement and (iii) each New Term Lender with a New Term Loan shall become a Lender with respect to such Class of New Term Loans and New Term Loan Facility and all matters relating thereto. (e) On any Increased Amount Date on which any New Revolving Credit Commitments which are effected as an increase to one or more existing Classes of Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (i) at such time and in such manner as the Borrower and the Administrative Agent shall agree, each of the existing Revolving Lender’s shall assign to each New Revolving Lender, and each New Revolving Lender shall purchase from each of the existing Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans of such Class outstanding on the date of such Increased Amount Date as shall be necessary such that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to such ~~Incremental Commitments and the making of Incremental Loans and other extensions of credit thereunder~~ Commitment Amount Increase, (ii) each New Revolving Credit Commitment obtained by a Revolving Lender pursuant to ~~be made on the date of effectiveness thereof, the Borrower~~ a Commitment Amount Increase shall be ~~in compliance~~ deemed for all purposes a Revolving Credit Commitment of such Class and each Loan made thereunder shall be deemed, for all purposes of this Agreement, a “Revolving Loan” and (iii) each Lender with ~~the Financial Covenants set forth in Section 6.12 (Financial Covenants)~~ a New Revolving Credit Commitment shall become a Lender with respect to such Class of New Revolving Credit Commitment and all matters relating thereto. (f) On any Increased Amount Date on which any New Revolving Credit Commitments which are effected through the ~~Fiscal Quarter~~ establishment of one or more Class or Classes of new revolving credit commitments, subject to the satisfaction of the ~~Borrower most recently ended as of the date of effectiveness~~ foregoing terms and conditions, (i) each applicable existing Revolving Lender and New Revolving Lender of such ~~Incremental~~ Class shall make Revolving Credit Commitments on available to the Borrower in an amount equal to its New Revolving Credit Commitment, (ii) each New Revolving Credit Commitment made available by a ~~pro forma basis~~ Revolving Lender pursuant to a Commitment Amount Increase shall be deemed for all purposes a Revolving Credit Commitment made pursuant to a separate Class of Revolving Credit Facility and each Loan made thereunder shall be deemed, for all purposes of this Agreement, a “Revolving Loan” made pursuant to such Class and (iviii) each New Revolving Lender with a new Revolving Credit Commitment shall become a Lender with respect to such additional Class of Revolving Credit Commitment and new Revolving Credit Facility and all matters relating thereto. (g) The Borrower agrees to pay the ~~Borrower shall have delivered or caused to have been delivered to~~ reasonable documented out-of-pocket expenses of the Administrative Agent ~~such customary legal opinions~~relating to any Commitment Amount Increase. Notwithstanding anything herein to the contrary, ~~board resolutions~~no Lender shall have any obligation to increase its Revolving Credit Commitment or advance New Term Loans and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, ~~secretary’s certificates~~and each Lender may at its option, ~~officer’s certificates~~ unconditionally and ~~other documents as shall reasonably be requested by the Administrative Agent~~ without cause, decline to increase its Revolving Credit Commitment or advance New Term Loans. Each Commitment Amount Increase Notice entered into in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 Commitment Amount Increase may, without the consent of any ~~Lender~~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 ~~give~~ effect to the provisions of this ~~Section~~Section 1.16 and, ~~including~~for the avoidance of doubt, ~~without limitation,~~ this Section 1.16 shall supersede any ~~amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement~~ provisions of this Agreement (including, without limitation, ~~amendments to the Mortgages~~ Section 1.3, Section 1.9, Section 1.15, Section 3, Section 13.7 and ~~datedown endorsements to the title policies~~Section 13.13) ~~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, including~~ any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan ~~Documents. Any Incremental~~ Document that may otherwise prohibit or conflict with any New Revolving Credit Commitment, New Term Loan Commitments ~~established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental~~ or other increases in Term Loans ~~made thereunder, shall be designated~~ or Revolving Credit Commitments as ~~a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of~~ contemplated by 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 AgreementSection. (h) ~~The Administrative Agent shall notify~~ Notwithstanding anything to the contrary in this Agreement or any other provision of any Loan Document, if the proceeds of any New Term Loans are intended to be applied to finance an Acquisition permitted hereunder (x) with the consent of the Lenders ~~promptly upon receipt by~~ providing such New Term Loans, the ~~Administrative Agent~~ availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality and (y) the existence of any ~~notice from~~ Default or Event of Default and compliance with the ~~Borrower referred to in Section 2.21(a) (Incrementa~~Secured Leverage Ratio or the Total Leverage Ratio, as applicable, will be determined as of the date of the execution of the definitive agreement with respect thereto.

Appears in 1 contract

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

Incremental Facilities. ~~(a)~~ The Borrower may on from time to time add one or more occasions after the Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (~~each,~~ each an “Incremental Term Facility”; ) and/or increase the ~~commitments in respect thereof~~ Aggregate Revolving Commitments (each such increase, an “Incremental ~~Term Commitments”~~ Revolving Increase”; and together with ~~the Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “~~each Incremental Term ~~Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases~~Facility collectively, the “Incremental Facilities”~~); provided that~~ ) to this Agreement at 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) option 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 may be agreed to~~ by an agreement in writing entered into by the ~~Administrative Agent) after the date on which such notice is delivered to~~ Loan Parties, the Administrative Agent and each Person (iiincluding any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that: (a) the aggregate principal amount of ~~the~~ all Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and any such Lender that fails to respond to such approach Facilities shall ~~be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is~~ not ~~then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent).~~exceed $35,000,000; (b) ~~The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder~~ no Default shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 exist 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 would exist after giving effect to such Incremental ~~Commitments and the making of Incremental Loans thereunder to be made on such date,~~ Facility; (iic) ~~except as otherwise agreed by the Lenders providing the relevant~~ each Incremental Facility ~~in connection with any Limited Condition Acquisition (which~~ shall be ~~governed by clause~~ in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof (d) ~~below), on the date of effectiveness thereof,~~ the representations and warranties ~~set forth~~ of each Loan Party contained in Article ~~III and in the~~ V or any other Loan ~~Documents~~ Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, 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,~~ respects on and as of the effective date of such ~~date~~Incremental Facility, except in to the ~~case of any~~ extent that such ~~representation~~ representations and ~~warranty that expressly relates~~ warranties specifically refer to ~~a prior~~ an earlier date, in which case ~~such representation and warranty~~ they shall be true and correct in all material respects as of such ~~prior~~ earlier date; (e) no existing Lender shall be under any obligation to provide any portion of an Incremental Facility and any such decision whether to provide any portion of an Incremental Facility shall be in such Lender’s sole and absolute discretion; (f) each Person providing a portion of an Incremental Facility shall qualify as an Eligible Assignee; (g) the Borrower shall deliver to the Administrative Agent: (i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, ~~(iii)~~ certifying that, before and after giving effect to such Incremental ~~Commitments~~ Facility, (1) the representations and ~~the making~~ warranties of ~~Incremental Loans and~~ each Loan Party contained in Article V or any other ~~extensions of credit thereunder to be made on the date of effectiveness thereof~~Loan Document, ~~the Borrower~~ or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct 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~~ all material respects on and as of the date of ~~effectiveness~~ such increase, 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 as of such ~~Incremental Commitments on a pro forma basis~~ earlier date, and (iv2) no Default exists; (ii) such amendments to the ~~Borrower shall have delivered or caused to have been delivered to~~ Collateral Documents as the Administrative Agent ~~such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall~~ may reasonably ~~be requested by~~ request to cause the ~~Administrative Agent in connection with any such transaction. (d) Notwithstanding~~ Collateral Documents to secure the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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) Obligations after giving effect to such Incremental ~~Commitments~~ Facility (collectively “Collateral Document Amendments”); (iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the ~~making~~ Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a portion of an Incremental ~~Loans and other extensions~~ Facility), dated as of ~~credit thereunder to be made on~~ the effective date of ~~effectiveness thereof,~~ such Incremental Facility; and (iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to the ~~Borrower shall~~ incurrence of such Incremental Facility on a Pro Forma Basis the Loan Parties would be in compliance with the ~~Financial Covenants~~ financial covenants set forth in Section ~~6.12~~ 7.11 recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (~~Financial Covenants~~b) (or, in the case of any such Incremental Facility incurred prior to the date a Compliance Certificate is required to be delivered pursuant to Section 6.02(a) for the fiscal year ending December 31, 2015, such compliance with Section 7.11 shall be recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Borrower has filed a 10-Q with the SEC using the financial results set forth in such filing); (h) in the case of an Incremental Term Facility: (i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that: (A) the final maturity of such Incremental Term Facility shall not be earlier than the later of the Maturity Date and the latest maturity date of any previously incurred term loan under this Agreement; (B) the Weighted Average Life To Maturity of such Incremental Term Facility shall not be shorter than the Weighted Average Life to Maturity of any previously incurred term loan under this Agreement; (C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield of the Revolving Loans or any other outstanding term loan under this Agreement by more than 50 basis points (0.50%) per annum, then the Applicable Rate or fees payable by the Borrower with respect to the ~~Fiscal Quarter~~ Revolving Loans or such other outstanding term loan under this Agreement, as applicable, shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Revolving Loans and such other outstanding term loan under this Agreement, as applicable, to be 50 basis points (0.50%) less than the All-In-Yield on such Incremental Term Facility; (ii) such Incremental Term Facility shall share ratably in any mandatory prepayments of the ~~Borrower most recently ended~~ other term loans under this Agreement (or otherwise provide for more favorable prepayment treatment for the then outstanding term loans under this Agreement) and shall have ratable voting rights as the other term loans under this Agreement (or otherwise provide for more favorable voting rights for the then outstanding term loans under this Agreement). (i) in the case of any Incremental Revolving Increase: (i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such Incremental Revolving Increase) applicable to such Revolving Facility; (ii) if any Revolving Loans are outstanding on the date of ~~effectiveness of~~ such increase, (x) each Lender providing such Incremental ~~Commitments on~~ Revolving Increase shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders with a ~~pro forma basis~~ Revolving Commitment and (y) such prepayment of Revolving Loans of existing Lenders shall be subject to Section 3.05; and (iii) the ~~Borrower~~ existing Lenders with a Revolving Commitment shall ~~have delivered or caused~~ on the effective date of such Incremental Revolving Increase be deemed to have ~~been delivered~~ made such assignments (which assignments shall not be subject to the requirements set forth in Section 11.06(b)) of the outstanding 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 ~~customary legal opinions~~adjustments to the Register as are necessary so that, 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 necessary or appropriate, in the opinion of the Administrative Agent, to give after giving effect to ~~the provisions of this Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral~~ such assignments 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 Agreementadjustments, each Lender ~~holding an~~ with a Revolving Commitment (including the Lenders providing such Incremental ~~Commitment~~ Revolving Increase) will hold participation interests in Letters of ~~any Series shall make a loan to the Borrower in an amount~~ Credit and Swing Line Loans equal to ~~such Incremental Commitment on the date specified in such Incremental Facility Agreement~~its pro rata share thereof. ~~(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 2.21(a) (Incrementa~~

Appears in 1 contract

Sources: Credit Agreement (Mimedx Group, Inc.)

Incremental Facilities. (a) The ~~Borrower~~ Company may on one or more occasions after the Closing Date, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 established under this Section 2.21 on any ~~time~~ 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 ~~Permitted~~ Base Incremental Amount ~~applicable~~ in effect on such date, and an additional amount subject to the Maximum Incremental ~~Commitments at~~ Amount as of such ~~time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~date. Each such notice shall specify (iA) the date on which the ~~Borrower~~ 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 ~~ten (10)~~ 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~~ Agent, and (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the ~~Borrower~~ Company proposes to become an Incremental Lender, (1) if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and (2) in the case of an Incremental Revolving Commitment, must be reasonably ~~acceptable~~ 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 ~~Commitments~~ 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 Facility and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility ~~Agreement~~Amendment, identical to those of the Term B-1 Commitments or Term B-2 Commitments and the related Term Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield~~ upfront fees, interest rates and amortization schedule applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, then the Applicable Margin then in effect for Tranche B Facility and Incremental Term Loans shall ~~automatically~~ be ~~increased to a level such that~~ determined by the ~~Weighted Average Yield with respect to~~ Company and 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term ~~Loans or~~ Lenders providing the relevant Incremental ~~Revolving Loans~~Term Commitments, (ii) except in the case of an Incremental Term Facility effected as ~~applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable~~ an increase to ~~any~~ an 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B~~ Term Loans with the latest Maturity Date (~~without giving effect to prior prepayments that would otherwise modify~~ calculated based on the weighted average life to maturity of such Term Loans as of the ~~Tranche B Term Loans~~date of funding thereof (giving effect to any amendments thereto); ), (iii) ~~no Incremental Maturity Date of~~ if the weighted average yield relating to any Incremental Term ~~Facility shall be earlier than~~ Loan exceeds the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable weighted average yield relating to any Class of Term Loans immediately prior to the effectiveness of the applicable Incremental Facility ~~shall~~ Amendment by more than 0.50% (to be determined by the ~~Borrower and the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not~~ Administrative Agent consistent with ~~the terms of the Tranche B Term Facility~~ generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in ~~any material respect, shall be reasonably satisfactory to the Administrative Agent~~ each case shared with all lenders or holders thereof and applicable interest rate floors (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 but only to the extent that an increase in the interest rate floor applicable to such ~~financial maintenance covenant is also added~~ Class of Term Loans would result in an increase in an interest rate then in effect for such Class of Term Loans hereunder)), 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 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 Series of Incremental Term Loans (the “Declining Series”), the benefit of ~~any Tranche B Term Loans remaining outstanding after~~ this clause (iii) shall not apply with respect to the ~~effectiveness~~ incurrence of ~~such Incremental Facility Agreement); (v) any~~ other 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~~ if the applicable Incremental Facility ~~Agreement; (vi) any Incremental Commitments and Incremental Loans shall, as elected by the Borrower, be equal or junior~~ Amendment in ~~right of payment with any remaining portion~~ respect of the ~~Facilities and, with respect to security with any remaining portion of the Facilities, pari passu, junior or unsecured~~ Declining Series so provides 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~~ iv) no Incremental ~~Commitments or Incremental Loans that are pari passu with or junior to the Facilities with respect to security~~ Term Maturity Date 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 any Term Loan. Any Incremental ~~Revolving~~ Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be ~~made~~ 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 ~~pro rata~~ pari passu basis with ~~all other Revolving Commitments~~ the Liens on the ~~Incremental Facility Closing Date; and (D)~~ Collateral securing 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 ClassLoan Document Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility ~~Agreements~~ Amendments executed and delivered by the ~~Parent~~Company, the ~~Borrower~~Borrowing Subsidiaries (in the case of Incremental Revolving Facilities), 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 (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, 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 ~~making~~ full amount of such Incremental Commitments shall have been funded as 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 of each Loan Party set forth in ~~Article III and~~ the Loan Documents (or, in the ~~other Loan Documents~~ case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of ~~the~~ such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each ~~case,~~ 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, (iii) ~~after giving effect~~ the Company shall make any payments required to be made pursuant to Section 2.16 in connection with 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~~ related transactions under this 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 Commitments on a pro forma basis~~ 2.21 and (iv) the ~~Borrower~~ Company shall have ~~delivered or caused to have been~~ delivered to the Administrative Agent such ~~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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.21. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series~~Revolving Commitment”) . For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Revolving Lenders, shall automatically be adjusted to give effect thereto. (ge) 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~~Amendment, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the ~~Borrower~~ Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility ~~Agreement~~Amendment. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~Borrower~~ Company referred to in Section 2.21(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).

Appears in 1 contract

Sources: Credit Agreement (Minerals Technologies Inc)

Incremental Facilities. (a) ~~The Borrower may on one or more occasions after~~ At any time during the ~~Closing Date~~term of this Agreement, ~~by written notice~~ at the option of Borrowers (but subject to the ~~Administrative Agent~~conditions set forth in clause (b) below), ~~request~~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 ▇▇▇▇▇▇▇▇▇, 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 $50,000,000 and 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 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 $500,000,000. (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 in any Revolving Commitments (each, a~~ “~~Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments~~Increase Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, (ii) ~~one or more new term loan commitments~~ each of the ~~same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or~~conditions precedent set forth in Section 3.2 are satisfied, (iii) ~~the addition~~ in connection with any Increase, if any Loan Party or any of ~~one~~ its Subsidiaries owns or ~~more new tranches of term loans~~ will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (~~each~~with sufficient additional originals thereof for each Lender), ~~an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments”~~ duly executed 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~~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 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 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made ~~thereunder~~ pursuant to the increased Revolver Commitments shall be ~~set forth in an Incremental Facility Agreement; provided that, in any event, (i) if~~ the ~~Weighted Average Yield~~ same as the interest rate margin applicable to ~~any Incremental Term~~ Revolving Loans ~~issued on or~~ hereunder immediately prior to the ~~date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Increase Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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) defined 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~~ Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be ~~effected~~ deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to ~~one or more Incremental Facility Agreements executed and delivered by~~ the ~~Parent, the Borrower, each Incremental Lender providing such Incremental~~ increased Revolver 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 Maximum Revolver Amount pursuant to this Section 2.14. (d) ~~below~~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”), ~~no Default or Event of Default~~ and such Post-Increase Revolver Lenders shall ~~have occurred and be continuing on~~ purchase from each Pre-Increase Revolver Lender, at the ~~date of effectiveness~~ principal amount thereof, ~~both immediately prior~~ 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 ~~immediately~~ 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 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental increased Revolver Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~The Revolving Loans, ~~without~~ 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 ~~consent of any Lender~~benefits afforded by, ~~effect such amendments to~~ 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 ~~as may~~ continue to be ~~necessary~~ perfected under the Code or ~~appropriate, in the opinion of the Administrative Agent, to give~~ otherwise after giving 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 Borrower in connection with the establishment of any such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) 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 Revolver 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. 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 Commitments and Incremental Loans for all purposes of this AgreementMaximum Revolver Amount. (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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (V F Corp)

Incremental Facilities. (a) ~~The~~ At any time during the Revolving Commitment Period, the Borrower may ~~on one or more occasions after the Closing Date, by written notice~~ request (but subject to the ~~Administrative Agent, request:~~ conditions set forth in clause (ib) ~~an increase in any~~ below) (x) the Revolving Commitments be increased by an amount not to exceed the Available Incremental Amount (~~each~~each such increase, a an “Revolving Commitment Increase~~” and~~ ”) and/or (y) the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new~~ Lenders establish an incremental term loan ~~commitments of~~ facility under this Agreement in an aggregate principal amount not to exceed the ~~same Class as any outstanding Term Loan~~ Available Incremental Amount (~~each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~each such facility, 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 Facilitiesand, together with ~~the~~ any Revolving Commitment ~~Increases and the Term Loan Increases~~Increase, the “Incremental Facilities”)~~; provided that the aggregate~~ . No Lender shall be obligated to participate in an Incremental Facility. Any Incremental Facility shall be in an amount of ~~all~~ at least $5,000,000 (or, if the ~~Incremental Commitments at any time shall not exceed the Permitted~~ Available Incremental Amount ~~applicable to~~ is less than $5,000,000, such remaining Available Incremental Amount) and integral multiples of $500,000 in excess thereof. Additionally, for the ~~Incremental Commitments at such time less~~ avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of Incremental ~~Equivalent Indebtedness incurred pursuant to clause (w)~~ Facility exceed the Available Incremental Amount during the term of the ~~definition~~ Agreement. (b) Each of ~~“Permitted Debt”. Each such notice~~ the following shall ~~specify~~ be conditions precedent to the effectiveness of any Incremental Facility: (i) the ~~date on which the~~ Borrower ~~proposes that the~~ shall have delivered an irrevocable written request for such Incremental ~~Commitments shall be effective, which shall be a date not less than~~ Facility at least ten (10) Business Days ~~(or~~ prior to the requested effective date of such ~~shorter period as may be agreed to by the Administrative Agent)~~ Incremental Facility, and promptly after ~~the date on which such notice is delivered to~~ receipt thereof, the Administrative Agent ~~and (ii) the amount of~~ shall invite each Lender to provide the Incremental ~~Commitments being~~ Facility ratably in accordance with its Revolving Percentage of each requested Incremental Facility (it being agreed that ~~(x)~~ no Lender shall be obligated to provide an Incremental Facility and that any Lender ~~approached~~ may elect to participate in such Increase in an amount that is less than its Revolving Percentage of such requested Increase or more 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 ~~any~~ the Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably Facility on terms acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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 LoansBorrower, then the ~~Applicable Margin then~~ Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in ~~effect for Tranche B Term Loans shall automatically be increased to a level such that~~ connection with 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~~ proposed 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floorsFacility; (ii) ~~the weighted average life~~ each Lender agreeing to ~~maturity of~~ participate in any such Incremental Term Loans shall be no 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 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 (other than an earlier maturity date for customary bridge financingsFacility, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 Administrative Agent have signed an Incremental ~~Lenders and~~ Joinder (~~y) all other terms of~~ any Incremental ~~Term Facility~~Joinder may, ~~if not consistent~~ with the ~~terms~~ consent of the Tranche B Term Facility in any 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 Borrower and 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 agreeing 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 LenderFacility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or ~~appropriate~~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, ~~in the opinion of~~ an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to ~~give~~ 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 conditions precedent set forth in Section 5.2 are satisfied with respect to such Incremental Facility; (iv) after giving pro forma effect to such Incremental Facility and the ~~provisions~~ use of ~~this Section~~proceeds thereof, ~~including~~(A) no Default or Event of Default shall have occurred and be continuing at the time of the incurrence of such Incremental Facility (or, ~~without limitation~~in the event the Borrower has made an LCT Election, ~~any amendments and/or supplements~~ and the Lenders providing such Incremental Facility have so agreed, no Event of Default shall have occurred and be continuing under Section 8.1(a) or (f) at the time of the incurrence of such Incremental Facility) and (B) the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 hereof as of the end of the most recently ended fiscal period for which financial statements are required to be delivered prior to the ~~documents~~ 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 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 a Compliance Certificate evidencing compliance with the requirements of this clause (iv); (v) 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 accordance with the Lenders’ respective revised Revolving Percentages and L/C Percentages, pursuant to procedures reasonably determined by the Administrative Agent in consultation with the Borrower; (vi) 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 ~~Borrower~~ weighted average life to maturity of any such Incremental Term Facility shall be 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 corresponding all-in yield with respect to 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 ~~the establishment of~~ such ~~new tranches or sub-tranches, including any amendments that are not adverse to the interests 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~~ Facility shall ~~include any amendments that do not reduce the ratable amortization received by each Lender thereunder~~have been paid. (fc) Upon the effectiveness of any Incremental Facility, (i) in the case of a Revolving Commitment Increase, (x) all references in this Agreement and any other Loan Document to the Revolving Commitments shall 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 this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Revolving Commitment Increase pursuant to this Section 2.12 and (ii) in the case of an Incremental ~~Commitment of~~ Term Facility, all references in this Agreement and any ~~Incremental Lender~~other Loan Document to the Loans and/or Lenders shall be deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental ~~Lender shall be deemed~~ Term Facility and the lenders thereunder. (d) The Incremental Facilities established pursuant to ~~be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth~~ this Section 2.12 shall be entitled to all the ~~rights of,~~ benefits afforded by this Agreement 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 shall, without limiting the foregoing, benefit equally and ratably from any ~~Incremental Loans made thereunder,~~ 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 ~~designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement. (g) Subject~~ perfected under the Code or otherwise after giving effect to the ~~terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment~~ establishment 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~~Facility. ~~(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 2.21(a) (Incrementa~~

Appears in 1 contract

Sources: Credit Agreement (Carbonite Inc)

Incremental Facilities. (a) The Borrower ~~may on~~ and any one or more ~~occasions after the Closing Date, by written notice~~ Lenders (including New Lenders) may from time to ~~the Administrative Agent, request:~~ time agree that such Lenders shall (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of add one or more new tranches of term ~~loans~~ facilities and/or increase the principal amount of the Term Loans (~~each~~each such new tranche or increase, an “Incremental Term Facility”; ) or (ii) increase the ~~commitments in respect thereof~~ aggregate amount of Revolving Commitments (any such increase, an “Incremental ~~Term Commitments” and~~ Revolving Facility”; together with ~~the Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the~~ any 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~~ , as applicable, by executing and delivering 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 Administrative Agent an Increased Facility Activation Notice specifying (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~~ amount of such increase (or loans that will comprise any such ~~shorter period as may be agreed to by~~ new tranche) and the ~~Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and~~ Facility or Facilities involved, (ii) the ~~amount of the Incremental Commitments being requested~~ applicable Increased Facility Closing Date (~~it being agreed that (x) any Lender approached to provide any Incremental Commitment~~ which may ~~elect or decline, in its sole discretion, to provide such Incremental 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~~ selected by the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date~~); (iv) (x) subject to clauses (ii~~) and (iii) ~~above~~in the case of Incremental Term Loans, (x) the ~~pricing~~applicable Incremental Term Facility maturity date, ~~interest rate margins, discounts, premiums, rate floors, fees and~~ (y) the amortization schedule ~~applicable to any~~ for such Incremental Term Facility ~~shall be determined by the Borrower and the Incremental Lenders~~ and (yz) ~~all other terms of any~~ the Applicable Margin for such Incremental Term Facility; provided, ~~if not consistent with the terms of the Tranche B Term Facility in any 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 exists or shall ~~have occurred and be continuing on the date of effectiveness thereof, both~~ exist immediately ~~prior to and immediately~~ before or after giving effect to such Incremental ~~Commitments and the making of Incremental Loans thereunder~~ Facility; (B) on a pro forma basis after giving effect to ~~be made on~~ such ~~date, (ii) except as otherwise agreed by the Lenders providing the relevant~~ Incremental Facility as though fully borrowed and any other transactions in connection ~~with any Limited Condition Acquisition (which~~ therewith, the Borrower shall be ~~governed by clause~~ in compliance with the Financial Covenants (~~d) below~~whether or not the Financial Covenants are then in effect), on recomputed as of the ~~date~~ last day of ~~effectiveness thereof,~~ the most recently ended fiscal quarter of the Borrower for which financial statements are available; (C) each of the representations and warranties ~~set forth~~ made by any Loan Party in ~~Article III and in~~ or pursuant to the ~~other~~ Loan Documents shall be true and correct ~~(A)~~ in ~~the case of the~~ all material respects immediately prior to, and after giving effect to, such Incremental Facility, except for representations and warranties ~~qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case, on and~~ made as of ~~such date, except in the case of any such representation and warranty~~ a specific earlier date 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~~ earlier date, (~~iii~~D) ~~after giving effect~~ the maturity date and weighted average life to maturity of any such Incremental ~~Commitments~~ Term Facility shall be no earlier than or shorter than the maturity date and weighted average life to maturity, respectively, of the Term Facility; (E) the interest rates and amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the ~~making of~~ Lenders thereunder; provided that the total yield (calculated for both the Incremental Term Loans and ~~other extensions~~ 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 ~~credit thereunder~~ 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% and (F) 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 ~~made on~~ determined by the ~~date~~ Borrower and the Lenders thereunder, provided that, to the extent such terms and documentation are not consistent with, in the case of ~~effectiveness thereof~~the Incremental Term Loans, the ~~Borrower~~ Term Facility (except to the extent permitted by clause (D) or (E) above), they shall be ~~in compliance with~~ reasonably satisfactory to the ~~Financial Covenants~~ Administrative Agent; provided that, the Lenders (including New Lenders) committing to provide Incremental Term Loans, the proceeds of which are to be used to finance a Permitted Acquisition, may agree (i) that the satisfaction of the conditions set forth in the foregoing clauses (A), (B) and (C) may be tested as of the date that the definitive documentation for such Permitted Acquisition 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 ~~6.12~~ 8(a) or (~~Financial Covenants~~f) and (iii) with respect to the 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 have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to waive without the ~~extent agreed by~~ consent of any other Credit Party the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 condition set forth in clause (~~c)(i~~C). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments and borrowings of Incremental Term Loans shall not exceed (x) $100,000,000 plus (y) an additional amount so long as the Total Leverage Ratio (as determined on a pro forma basis giving effect to such Incremental Facility as though fully borrowed and any other transactions in connection therewith) is not in excess of 4.00:1.00 (the sum of clauses (x) and (y), the “Incremental Limit”) 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in the opinion~~ of the Administrative Agent, (x) each increase effected pursuant to ~~give effect to the provisions~~ this paragraph shall be in a minimum amount of ~~this Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral~~ at least $10,000,000 and ~~Guarantee Requirement~~ (~~including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies~~y) ~~and such technical amendments as~~ no more than six Increased Facility Closing Dates may be ~~necessary~~ selected by the Borrower after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any additional bank, financial institution or ~~appropriate in~~ other entity which, with the ~~reasonable opinion~~ consent of the Borrower and, other than with respect to a Lender, an Affiliate of a Lender, or an Approved Fund, the Administrative Agent ~~and the Borrower in connection with the establishment of such new tranches~~ (which consent shall not be unreasonably withheld, conditioned or ~~sub-tranches~~delayed), ~~including any amendments that are not adverse~~ elects to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be become a “Lender” under this Agreement in connection with any transaction described in Section 2.22(a) shall execute a New Lender Supplement (~~and~~ each, a “New Lender Supplement”), substantially in the form of Exhibit C, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender ~~in respect of Commitments~~ for all purposes and ~~Loans of~~ to 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~~ same extent as if originally a party hereto and shall be bound by ~~all agreements, acknowledgements~~ and ~~other obligations of Lenders (or Lenders in respect of Commitments and Loans of~~ entitled to 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 Commitments and Incremental Loans for all purposes benefits of this Agreement. (gc) ~~Subject~~ Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the ~~terms and conditions set forth herein and~~ Revolving Facility, 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 (and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Borrower and the relevant Lender). (d) The proceeds of the Incremental ~~Facility~~ Facilities shall be used for purposes permitted by Section 6.10. (e) Notwithstanding anything to the contrary in this Agreement, each ~~Lender holding an Incremental Commitment~~ of ~~any Series~~ the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall ~~make a loan~~ be amended to the ~~Borrower~~ extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may be effected 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~~ writing by the Administrative Agent ~~of any notice from~~ with the ~~Borrower referred~~ Borrower’s consent (not to ~~in Section 2.21(a~~be unreasonably withheld) ~~(Incrementa~~and furnished to the other parties hereto.

Appears in 1 contract

Sources: Credit Agreement (RE/MAX Holdings, Inc.)

Incremental Facilities. (a) The ~~Borrower~~ Company may on one or more occasions after the Closing Date, by written notice to the Administrative Agent, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ request the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments~~ establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 incurred under this Section 2.22 on any ~~time~~ date shall not exceed the ~~Permitted~~ sum of (x) an amount equal to the Base Incremental Amount ~~applicable~~ in effect on such date, (y) an amount subject to the Maximum Incremental ~~Commitments at~~ Amount as of such ~~time less~~ date and (z) an amount equal to the ~~aggregate amount~~ Voluntary Prepayment Amount as of ~~Incremental Equivalent Indebtedness incurred pursuant~~ such date (it being understood that (A) the Company shall be deemed to have used amounts under clause (wy) above prior to utilization of amounts under clause (x) or (z) above and (B) the ~~definition of “Permitted Debt”~~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 (iA) whether the Company is requesting Incremental Term Commitments or Incremental Revolving Commitments, (B) the date on which the ~~Borrower~~ Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than ~~ten~~ five (105) 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 (iiC) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental ~~Commitment~~ Commitments may elect or decline, in its sole discretion, to provide such Incremental ~~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)~~ Commitments and (y) any Person that the ~~Borrower~~ Company proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible ~~Assignee and must be reasonably acceptable to the Administrative Agent~~Assignee). (b) The terms and conditions of ~~the~~ any Incremental ~~Commitments~~ Term Facility and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility ~~Agreement~~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, in any event,~~ that (i) if the ~~Weighted Average Yield~~ upfront fees, interest rates and amortization schedule applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, then the Applicable Margin then in effect for Tranche B Facility and Incremental Term Loans shall ~~automatically~~ be ~~increased to a level such that~~ determined by the ~~Weighted Average Yield with respect to~~ Company and 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term ~~Loans or~~ Lenders providing the relevant Incremental ~~Revolving Loans~~Term Commitments, (ii) except in the case of an Incremental Term Facility effected as ~~applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable~~ an increase to ~~any~~ an 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term~~ Initial Terms Loans); , (iii) no Incremental Term Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the ~~initial Tranche B~~ Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); and (iv) (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 other terms of any Incremental Term Facility, ~~if not consistent with the terms~~ for purposes of ~~the Tranche B Term Facility in any material respect~~prepayments (either mandatory or optional), shall be ~~reasonably satisfactory~~ treated substantially the same as (and in any event no more favorably than) the Initial Term Loans. Any Incremental Term Commitments established pursuant 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~~ an Incremental Facility ~~Agreement) (it being understood~~ Amendment that ~~to the extent any financial maintenance covenant is added for the benefit of~~ have identical terms and conditions, and any Incremental Term Loans ~~or any~~ made thereunder, shall be designated as a separate series (each a “Series”) of 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 Commitments and Incremental Term Loans ~~may participate~~ for all purposes of this Agreement. Any Incremental Revolving Commitments established pursuant to an Incremental Facility Amendment shall have substantially the same terms as and be deemed to be Revolving Commitments for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder (i) shall be secured by the same Collateral securing the other Loan Document Obligations on a ~~pro rata~~ pari passu basis ~~or less than pro rata basis~~ with the Liens on the Collateral securing the other Loan Document Obligations, (~~but not on a greater than pro rata basis~~ii) 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 property or assets of the Company or any of the Subsidiaries other than the Collateral ~~securing the Facilities~~ (or ~~guaranteed by any Person~~ property or assets 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 Agreementsubstantially concurrently become Collateral), 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 unless otherwise permitted ~~hereunder, or for any other purpose not prohibited~~ by this Agreement~~; and~~ , (~~viii~~iii) ~~the Incremental Revolving Commitments and Incremental Revolving Loans~~ shall be ~~identical to~~ Guaranteed by the ~~Revolving Commitments~~ same Loan Parties that Guarantee the other Loan Document Obligations and ~~the Revolving Loans,~~ (iv) shall not be Guaranteed by any Persons other than ~~as to their Maturity Date and as set forth in~~ the Loan Parties, unless otherwise permitted by 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 ClassAgreement. (c) The Incremental Term Commitments and Incremental Term Facilities relating thereto and the Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility ~~Agreements~~ Amendments executed and delivered by the ~~Parent, the Borrower~~Company, 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 assuming that the ~~making~~ full amount of such Incremental Commitments shall have been funded as Loans ~~thereunder to be made~~ 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 applicable acquisition or investment documentation and no Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and is continuing on the 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 on the applicable 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 of each Loan Party set forth in ~~Article III and~~ the Loan Documents (or, in the ~~other Loan Documents~~ case of any Incremental Acquisition Term Facility if agreed by all applicable Incremental Term Lenders, the Specified Representations and the Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of ~~the~~ such representations and warranties qualified as to ~~materiality~~materiality or Material Adverse Effect, in all respects and (B) otherwise, in all material respects, in each ~~case,~~ 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, (iii) ~~after giving effect~~ the Company shall be in compliance on a Pro Forma Basis with the financial maintenance covenants 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 ~~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~~ related transactions under this 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 Commitments on a pro forma basis~~ 2.22 and (ivv) the ~~Borrower~~ Company shall have ~~delivered or caused to have been~~ delivered to the Administrative Agent such ~~customary~~ 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 ~~reasonably~~ be requested by the Administrative Agent in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.22. (fd) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 Commitments and Incremental Loans for all purposes of this Agreement. (ge) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility ~~Agreement~~Amendment, each Lender holding an Incremental Term Commitment of any Series shall make ~~a loan~~ an Incremental Term Loan to the ~~Borrower~~ Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility ~~Agreement~~Amendment. (hf) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender of the 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, at the principal amount thereof (together with accrued interest), such interests in the applicable Class of Revolving Loans and, in the case of the Dollar Tranche Revolving Commitments, participations in Letters of Credit and Swingline 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, 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 Revolving Lenders) ratably in accordance with their Revolving Percentages after giving effect to the effectiveness of such Incremental Revolving Commitments. 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. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~Borrower~~ Company referred to in Section ~~2.21(a~~2.22(a) and of the effectiveness of any Incremental Commitments in each case advising the Lenders of the details thereof. (~~Incrementa~~h) If an Incremental 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 make such payments on the Incremental Term Loan as required to prevent the Incremental Term Loan from being treated as an “applicable high yield discount obligation”.

Appears in 1 contract

Sources: Credit Agreement (Abm Industries Inc /De/)

Incremental Facilities. (ai) The Parent Borrower or the Foreign Subsidiary Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ Agent elect to request the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition establishment of one or more ~~new~~ additional tranches of term loans (~~each, an “Incremental Term Facility”;~~ the commitments thereto, the “New Term Loan Commitments”), and (ii) the Parent Borrower or the Foreign Subsidiary Borrower may by written notice to Administrative Agent elect to request the establishment of one or more increases in ~~respect thereof~~ Series 2013 Revolving Credit Commitments or Series 2016 Revolving Credit Commitments, which may be Series 2013 U.S. Revolving Credit Commitments or Series 2016 U.S. Revolving Credit Commitments (the “~~Incremental Term~~ New U.S. Revolving Credit Commitments”) or Series 2013 Spanish Revolving Credit Commitments or Series 2016 Spanish Revolving Credit Commitments (the “New Spanish Revolving Credit Commitments” ~~and~~ and, together with the ~~Incremental~~ New U.S. Revolving Credit Commitments, the “~~Incremental~~ New Revolving Credit Commitments”; the ~~loans made pursuant to such commitments, “Incremental Term Loans”; and the Incremental Term Facilities,~~ New Revolving Credit Commitments together with the ~~Revolving Commitment Increases and the~~ New Term Loan ~~Increases~~Commitments, collectively, the “~~Incremental Facilities~~New Loan Commitments”)~~; provided that~~ , in the case of clauses (a)(i) and (a)(ii) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate from the Restatement Effective Date and not less than $25,000,000 individually (or such lesser amount of as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all ~~the Incremental~~ such New Loan Commitments ~~at any time shall not exceed the Permitted Incremental Amount applicable~~ obtained on or prior 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”~~date). Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the ~~Incremental~~ New Loan Commitments shall be effective, which shall be a date not less than ten ~~(10)~~ Business Days ~~(or such shorter period as may be agreed to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative ~~Agent and~~ Agent. The applicable Borrower may approach any Lender or any Person (iiother than a natural person) ~~the amount~~ to provide all or a portion of the ~~Incremental Commitments being requested (it being agreed~~ New Loan Commitments; provided that ~~(x)~~ any Lender offered or approached to provide ~~any Incremental Commitment~~ all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such ~~Incremental Commitment~~ New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (~~and any~~ i) no Default or Event of Default shall exist on such ~~Lender that fails to respond~~ Increased Amount Date before or after giving effect to such ~~approach shall be deemed to have declined to provide such Incremental Commitment~~New Loan Commitments, as ~~the case may be~~applicable; (ii) both before and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable after giving effect to the ~~Administrative Agent). (b) The terms and conditions~~ making of any Series of New Term Loans or New Revolving Credit Loans, each of the ~~Incremental Commitments and the Incremental Loans to be made thereunder shall be~~ conditions set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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 Section 7 shall be included in the calculation of Weighted Average Yield for purposes of this clause (i), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); satisfied; (iii) ~~no Incremental Maturity Date of any Incremental Term Facility shall be earlier than~~ the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 New Loan Commitments shall be effected pursuant to one or more ~~Incremental Facility~~ Joinder Agreements executed and delivered by the ~~Parent, the Borrower, each Incremental Lender providing such Incremental Commitments~~ applicable Borrower 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 (, and each of which shall be ~~governed by clause (d) below), no Default or Event of Default shall have occurred~~ recorded in the Register 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~~ subject to 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 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 requirements set forth in Section ~~6.12~~ 5.4(c) and (~~Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis and~~ b); (iv) the applicable Borrower shall ~~have~~ make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the applicable Borrower shall deliver or cause to be delivered any legal opinions or ~~caused to have been delivered to the Administrative Agent such 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. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. (i) On any Increased Amount Date on which New U.S. Revolving Credit Commitments of the applicable Series are effected, subject to the satisfaction of the foregoing terms and conditions, (A) the Parent Borrower shall have made arrangements with the Administrative Agent to prepay certain U.S. Revolving Credit Loans on any Increased Amount Date pursuant to procedures substantially similar to the procedures set forth in Section 2.1(h) hereof with such changes as may be necessary or advisable as may be agreed by the Parent Borrower and the Administrative Agent to give effect to the pro rata borrowing provisions set forth in Section 2.1(b)(iv), and (B) each Lender with a New U.S. Revolving Credit Commitment (each, a “New U.S. Revolving Credit Lender”) shall become a Lender with respect to the U.S. Revolving Credit Commitment of the applicable Series and all matters relating thereto, and each Loan made thereunder (each, a “New U.S. Revolving Credit Loan”) shall be deemed for all purposes a U.S. Revolving Credit Loan of the applicable Series. (ii) On any Increased Amount Date on which New Spanish Revolving Credit Commitments of the applicable Series are effected, subject to the satisfaction of the foregoing terms and conditions, (A) the Parent Borrower shall have made arrangements with the Administrative Agent to prepay certain Spanish Revolving Credit Loans on any Increased Amount Date pursuant to procedures substantially similar to the procedures set forth in Section 2.1(h) hereof with such changes as may be necessary or advisable as may be agreed by the Parent Borrower and the Administrative Agent to give effect to the pro rata borrowing provisions set forth in Section 2.1(b)(iv), and (B) each Lender with a New Spanish Revolving Credit Commitment (each, a “New Spanish Revolving Credit Lender”, together with the “New U.S. Revolving Credit Lenders”, the “New Revolving Credit Lenders”) shall become a Lender with respect to the Spanish Revolving Credit Commitment of the applicable Series and all matters relating thereto, and each Loan made thereunder (each, a “New Spanish Revolving Credit Loan”, together with the “New U.S. Revolving Credit Loans”, the “New Revolving Credit Loans”) shall be deemed for all purposes a Spanish Revolving Credit Loan of the applicable Series. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) ~~Notwithstanding the foregoing~~ The terms and provisions of ~~this Section 2.21 (Incremental Facilities)~~ the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in ~~any other provision of any Loan Document~~the applicable Joinder Agreement, ~~if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition,~~ identical to the ~~extent agreed~~ existing Series 2018 Extended Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Series 2018 Extended Term Loan Maturity Date and mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the existing Series 2018 Extended Term Loans shall be identical, (ii) the rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable new Lenders ~~providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition~~ and shall be ~~limited to the following: (i)~~ set forth in each applicable Joinder Agreement; provided that (x) on the ~~date~~ weighted average life to maturity of ~~execution~~ all New Term Loans shall be no shorter than the weighted average life to maturity 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~~ existing Series 2018 Extended Term Loans and (y) on if the ~~date of closing of such Limited Condition Acquisition and the funding~~ Applicable LIBOR Margin or Applicable ABR Margin in respect of the ~~applicable Incremental~~ New Term Loans exceeds the Applicable LIBOR Margin or Applicable ABR Margin, as applicable, in respect of the existing Series 2018 Extended Term Loans by more than 0.50%, the Applicable LIBOR Margin or Applicable ABR Margin in respect of the existing Series 2018 Extended Term Loans, ~~(A) no Event~~ as applicable, shall be adjusted to be equal to the Applicable LIBOR Margin or Applicable ABR Margin, as applicable, in respect of ~~Default under Section 7.01(b)~~the New Term Loans minus 0.50%; provided, further, that in determining the Applicable LIBOR Margin and Applicable ABR Margin, (~~c),~~ x) original issue discount or upfront fees (~~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 deemed to constitute a ~~condition~~ like amount of original issue discount) paid by the Borrowers to ~~funding such Incremental~~ the New Term Loan Lenders under the New Term Loans ~~shall be~~ and to the ~~Specified Representations~~ Lenders of the existing Series 2018 Extended Term Loans (~~conformed as necessary~~ calculated in the case of the Series 2018 Extended Term Loans on a weighted average basis to ~~apply~~ include all consent fees paid to ~~such Limited Condition Acquisition~~Series 2018 Extended Term Loan Lenders on the Restatement Effective Date pursuant to Section 7(a) and 7(b) of the ~~Specified Acquisition Agreement Representations; provided that~~ Second Amendment) in the ~~Borrower will make all~~ initial primary syndication thereof (or, in the ~~representations and warranties set forth~~ case of the Series 2018 Extended Term Loans in ~~Article III on~~ connection with 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~~Second Amendment) shall be ~~conditions~~ included and equated to ~~funding~~ interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity), provided that for purposes of this clause (x), fees in the nature of arranging fees shall be excluded in any such determination and (y) any amendments to the Applicable LIBOR Margin or Applicable ABR Margin in respect of the Series 2018 Extended Term Loans that become effective subsequent to the Restatement Effective Date but prior to the time of such ~~Incremental~~ New Term Loans on shall also be included in such ~~closing date~~calculations; provided, further, that if the LIBOR Rate (iior ABR) ~~after giving effect~~ in respect of the New Term Loans includes a floor greater than the LIBOR floor (or ABR floor, as applicable) applicable to the Series 2018 Extended Term Loans, 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~~ excess amount shall be ~~in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect~~ equated to interest margin for purposes of determining any increase to the ~~Fiscal Quarter~~ Applicable Margin in respect of the ~~Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis~~ Series 2018 Extended Term Loans; and (iii) all other terms applicable to the ~~Borrower~~ New Term Loans of each Series that differ from the existing Series 2018 Extended Term Loans shall ~~have delivered or caused to have been delivered~~ be reasonably acceptable to the Administrative Agent ~~such customary legal opinions~~(as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Credit Loans and the New Revolving Credit Commitments shall be identical to the Revolving Credit Loans and the Revolving Credit Commitments, ~~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~~respectively. (e) Each ~~Incremental Facility~~ Joinder Agreement may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.14. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Laureate Education, Inc.)

Incremental Facilities. (a) The Borrower may on from time to time after the Closing Date elect to increase the Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more occasions after the Closing Date, by written notice to the Administrative Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of (or increase any existing tranche of) term loans denominated in Dollars (each, an “Incremental Term ~~Facility~~Loan”; ), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the ~~commitments~~ case of Increased Commitments and (y) $20,000,000 (or such lesser amount as the Administrative Agent may agree), in ~~respect thereof “~~the case of Incremental Term ~~Commitments” and together with the Incremental Revolving Commitments~~Loans so long as, after giving effect thereto, 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 principal amount of all such Increased Commitments and all such Incremental Term Loans (other than Refinancing Term Loans and Refinancing Revolving Commitments), when aggregated with the aggregate principal amount of all Incremental ~~Commitments at any time shall~~ Equivalent Indebtedness previously incurred, does not exceed the ~~Permitted~~ Incremental ~~Amount applicable~~ Cap. The Borrower may arrange for any such increase or tranche to ~~the Incremental Commitments at such time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant~~ be provided by one or more Lenders (each Lender so agreeing 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, an increase in its ~~sole discretion~~Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term 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 ~~provide~~ increase their existing Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental ~~Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment~~Term Loan, or extend Revolving Commitments or Extended Revolving Commitments, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided ~~that~~that each New Lender (and, in ~~any event, (i~~the case of an Increased Commitment, each Increasing Lender) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ approval of the ~~Junior Lien Intercreditor Agreement~~Borrower and, 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~~ such consent would be required under Section 9.04 for ~~any other purpose not prohibited by this Agreement; and (viii) the Incremental Revolving Commitments and Incremental Revolving Loans shall be identical~~ an assignment 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 ParentNew Lender, the ~~Borrower~~Administrative Agent and, 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~~ an Increased Commitment, each Issuing Bank and ~~warranties qualified as to materiality, in all respects and~~ Swingline Lender (~~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 Commitments and the making of Incremental Loans and other extensions of credit thereunder consents not 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered unreasonably withheld or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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(bdelayed), (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 . Without the consent of any ~~Lender~~Lenders other than the relevant Increasing Lenders or New Lenders, ~~effect such amendments to~~ this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment 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, 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 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 and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing (but subject to the following provisos), no Increased Commitments or Extended Revolving Commitments or Incremental Term Loans shall be permitted under this paragraph unless (i) on the proposed date of the effectiveness of such increase in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided, that to the extent agreed to by the Lenders providing such Increased Commitments or Incremental Term 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; provided further that the requirements of this sentence shall not apply in any respect to Incremental Term Loans incurred in connection with the ~~establishment~~ RBI Transactions if (x) the Acquisition Amendments Effective Date (as defined in Amendment No. 1) occurs substantially concurrently with the incurrence of such ~~new tranches~~ Incremental Term Loans or ~~sub-tranches, including any amendments that~~ (y) such Incremental Term Loans are ~~not adverse~~ incurred by the Borrower prior to the ~~interests~~ consummation of the RBI Acquisition and the proceeds thereof are deposited into customary escrow arrangements reasonably satisfactory to the Administrative Agent pursuant to which such proceeds will be released to the Borrower (I) substantially concurrently with the Acquisition Amendments Effective Date or, (II) in the event the Acquisition Amendments Effective Date has not occurred on or prior to the Outside Date (as defined in Amendment No. 1) to prepay in full such Incremental Term Loans and all accrued interest thereon no later than one Business Day following the Outside Date. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental and New Lender shall ~~be deemed~~ make available to ~~be a “~~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~~” (and a Lender in respect~~ ’s portion of ~~Commitments and~~ the outstanding Loans of the applicable ~~Class) hereunder~~Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and ~~henceforth shall be entitled to all~~ (ii) if, on the ~~rights of~~date of such increase, ~~and benefits accruing to, Lenders (or Lenders in respect of Commitments and~~ 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 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 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) ~~hereunder~~ 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, and shall be ~~bound~~ subject to indemnification by ~~all agreements, acknowledgements and~~ the Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other ~~obligations~~ than on the last day of ~~Lenders~~ 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 scheduled maturity date of any Incremental Term Loans (other than Refinancing Term Loans) shall be no earlier than the Term Loan Maturity Date (or ~~Lenders in respect~~ any later date required pursuant to any Additional Credit Extension Amendment that has previously become effective), (ii) the Weighted Average Life to Maturity of ~~Commitments and~~ such Incremental Term Loans (other than Refinancing Term Loans) shall not be shorter than the then remaining Weighted Average Life to Maturity of the Initial Term Loans (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment that has previously become effective) (except to the extent of amortization of up to 1.00% per annum of the original principal amount for periods where amortization has been eliminated as a result of prepayment of the applicable ~~Class~~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 (a) incurrence of Refinancing Indebtedness in respect thereof and ~~under~~ (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 Class of Incremental Term Loans if the ~~other Loan Documents. Any~~ applicable escrow release event does not occur prior to the specified escrow “outside date”), (iv) the provisions with respect to payment of interest (including any “MFN” provisions), original issue discount and upfront fees shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental ~~Commitments established~~ Term Loans, (v) 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, (vi) if the Borrower and the lenders providing the relevant Class of Incremental Term Loans agree, such Incremental Term Loans may be Excluded Term Loans, (vii) if the Borrower and the lenders providing the relevant 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 an open market purchases or “dutch auctions” so long as (1) no Event of Default shall have occurred and be continuing, (2) the Incremental ~~Facility Agreement that have~~ 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 (viii) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (vii) above) to the extent not identical to the terms ~~and conditions, and any Incremental Loans made thereunder~~of the then outstanding Term Loans, shall be ~~designated as a separate series~~ permitted if reasonably satisfactory to the Administrative Agent (it being agreed that the terms applicable to each ~~a “Series”)~~ Class of Incremental Term Loans contemplated by the Commitment Letter (as defined in Amendment No. 1) and the fee letter referred to therein are 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 ~~Loans for all purposes~~ Term Loan by virtue of this Agreement. (gb) ~~Subject to~~ Incremental Term Loans incurred in connection with the ~~terms and conditions set forth herein and~~ RBI Transactions may, at the option of the Borrower, be initially borrowed by an Escrow Borrower in the ~~applicable~~ form of Escrow Incremental ~~Facility Agreement~~Term Loans; provided that (i) such Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, ~~each Lender holding an Incremental Commitment~~ without limitation, for purposes of any ~~Series~~ financial calculation, the definition of “Obligations”, the definition of “Required Lenders” or Article VII or Section 9.02 hereof) and the obligations with respect thereto shall ~~make a loan~~ not be recourse to the Borrower or any Guarantor, in ~~an amount equal~~ each case, unless and until the Escrow Assumption with respect thereto has occurred, (ii) the Escrow Assumption with respect to ~~such~~ any Escrow Incremental ~~Commitment~~ Term Loans shall not be permitted unless on the date ~~specified~~ thereof (and after giving effect thereto) the applicable requirements set forth in subclauses (i) through (viii) in the penultimate proviso to clause (a) above would be satisfied if the Borrower were borrowing such Incremental ~~Facility Agreement~~Term Loans on the date of such Escrow Assumption (subject to the provisions of Section 1.06) and (iii) upon consummation of the Escrow Assumption, such Escrow Incremental Term Loans shall constitute Incremental Term Loans for all purposes hereunder. (hc) ~~The Administrative Agent~~ This Section 2.19 shall ~~notify the Lenders promptly upon receipt by the Administrative Agent of~~ override any ~~notice from the Borrower referred to~~ provisions in Section ~~2.21(a) (Incrementa~~9.02 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Cable One, Inc.)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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~~ established hereunder 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”$500,000,000. Each such notice shall specify (iA) 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 ~~ten (10)~~ 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 (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender). (b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, 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 (i) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (ii) there shall be no mandatory reduction of any Incremental Revolving Commitments prior to the Revolving Maturity Date and (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. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the Term Commitments and the Term Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield~~ up-front fees, interest rates and amortization schedule applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 Facility and 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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~~ determined by the ~~extent of such differential between interest rate floors;~~ Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) 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 B Term~~ Terms Loans ~~(without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans);~~ and (iii) no Incremental Term Loan Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date~~); (iv) (x) subject to clauses (ii) and (iii) above~~. Notwithstanding the foregoing, the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees~~ terms and ~~the amortization schedule~~ conditions applicable to ~~any~~ an Incremental Facility ~~shall be determined by~~ may include additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders providing such Incremental ~~Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term~~ Facility ~~in any material respect, shall be reasonably satisfactory to the Administrative Agent (except for covenants and terms that apply solely to any period~~ which are applicable only during periods after the latest Maturity Date that is in effect on the ~~effective~~ date of effectiveness of such Incremental Facility. Any Incremental Term Facilities established pursuant to an Incremental Facility ~~Agreement) (it being understood~~ Agreement that ~~to the extent any financial maintenance covenant is added for the benefit of~~ have identical terms and conditions, and any Incremental Term Loans ~~or any~~ made thereunder, shall be designated as a separate series (each a “Series”) of 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 Commitments and 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~~ for all purposes 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 . Notwithstanding anything to the contrary ~~in this Section 2.21 (~~herein, each Incremental ~~Facilities) or otherwise: (A) any such Incremental Revolving Commitments or Incremental Revolving Loans~~ Facility and all extensions of credit thereunder shall ~~rank~~ be secured by the Collateral on a pari passu ~~in right of payment and of security~~ basis 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 ClassLoan Document Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto 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 Incremental Facilities 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 and issuance of Letters of Credit 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 of each Loan Party 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,~~ 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, (iii) after giving effect to such Incremental Commitments and the making of ~~Incremental~~ Loans pursuant thereto (and ~~other extensions of credit thereunder to be made~~ based on the ~~date~~ assumption that borrowings are effected in the full amount of ~~effectiveness thereof~~any Incremental Revolving Commitments), the Borrower shall be in compliance on a Pro Forma Basis with the ~~Financial Covenants set forth~~ covenants contained in Section 6.12 ~~(Financial Covenants) with respect to~~ and Section 6.13 recomputed as of the ~~Fiscal Quarter~~ last day of the most-recently ended fiscal quarter of the Borrower ~~most recently ended as~~ for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, ending with the ~~date of effectiveness of such Incremental Commitments on a pro forma basis and~~ last fiscal quarter included in the Pro Forma Financial Statements), (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) the Borrower shall have ~~delivered or caused to have been~~ delivered to the Administrative Agent such ~~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~~. (d) Notwithstanding the foregoing provisions~~ , including a certificate of ~~this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance~~ a ~~Limited Condition Acquisition,~~ Financial Officer to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 effect set forth in ~~clause~~ clauses (~~c)(i) and~~ i), (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) ~~the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions~~above, ~~board resolutions, secretary’s certificates, officer’s certificates and other documents as shall~~ together with reasonably ~~be requested by the Administrative Agent in connection~~ detailed calculations demonstrating compliance with ~~any such transaction.~~ clause (eiii) 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, to give effect to the provisions of this Section, ~~including, without limitation, any amendments and/or supplements~~ provided that to the ~~documents delivered to satisfy~~ extent that any term of any such amendment could not be approved as an amendment of this Agreement by the ~~Collateral and Guarantee Requirement (including~~Lenders providing such Incremental Commitments voting a single Class without the approval of any other Lender, ~~without limitation, amendments~~ such amendment will be subject to the ~~Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion~~ approval of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderrequisite Lenders required under this Agreement. (fd) 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~~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 set forth in the definition of the term “Revolving Commitment”. ~~Any~~ For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments established pursuant to an~~ Revolving Commitment, the Revolving Exposure of the Incremental ~~Facility Agreement that have identical terms and conditions~~Revolving Lender holding such Commitment, and ~~any Incremental Loans made thereunder~~the Applicable Percentage of all the Revolving Lenders, shall automatically be ~~designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Loans for all purposes of this Agreement~~adjusted to give effect thereto. (ge) 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. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e) .

Appears in 1 contract

Sources: Credit Agreement (NCR Corp)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ the establishment, prior to the Revolving Maturity Date, of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”),~~ and/or (ii) ~~one or more new term loan commitments~~ the establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 (A) the aggregate amount of all the Incremental Commitments ~~at any time~~ established hereunder after the Restatement Effective Date shall not exceed ~~the Permitted Incremental Amount applicable to the~~ $150,000,000 and (B) any Incremental Commitments at established hereunder shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 (or, in each case, such ~~time less~~ lesser amount as shall be the ~~aggregate amount~~ remaining portion of the maximum Incremental ~~Equivalent Indebtedness incurred~~ Commitments permitted to be established pursuant to clause (wA) of or to which the ~~definition of “Permitted Debt”~~Administrative Agent may reasonably agree). Each such notice shall specify (ix) 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 ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent effective and (iiy) the amount of the Incremental Revolving Commitments ~~being~~ or the Incremental Term Commitments, as applicable, requested to be established (it being agreed that (x1) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental 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 (y2) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be ~~reasonably acceptable to~~ approved by the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank (each such approval not to be unreasonably withheld, delayed or conditioned) solely if such approval would be required under Section 9.04(b) for an assignment of Loans of the applicable Class to such Incremental Lender). (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 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 Borrower 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 Borrower, 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. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the Tranche A Term Commitments and the Tranche A Term Loans; provided ~~that, in any event,~~ that (i) if except in the ~~Weighted Average Yield applicable to~~ case of Customary Bridge Loans, the final scheduled maturity date of any Incremental Term Loans ~~issued~~ shall not be earlier than the latest Maturity Date with respect to any Class of Term Loans in effect on or prior to the date that is twelve (12) months after the Closing Date 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 incurrence of such ~~calculation, with respect to Tranche B~~ Incremental Term Loans, ~~then~~ (ii) except in the ~~Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased to a level such that~~ case of Customary Bridge Loans, the Weighted Average ~~Yield with respect~~ Life 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the weighted average life to maturity Maturity of any Incremental Term Loans shall be no shorter than the longest remaining ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of any Class of Term Loans outstanding on the ~~Tranche B~~ date of incurrence of such Incremental Term Loans (determined without giving effect to ~~prior prepayments~~ any prepayment thereof that would otherwise modify ~~the weighted average life~~ such Weighted Average Life to ~~maturity of the Tranche B Term Loans~~Maturity); (iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, ~~which~~it being understood that, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses this clause (ii~~) and (iii) above~~), ~~the pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ the amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental ~~Facility~~ Term Loans shall be determined by the Borrower and the ~~Incremental Lenders and (y) all other terms of any~~ applicable Incremental Term ~~Facility~~Lenders, ~~if not consistent with the terms of the Tranche B Term Facility in any 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~~iii) ~~(it being understood that to the extent any financial maintenance covenant is added for the benefit of any~~ Incremental Term Loans may participate in any mandatory prepayments hereunder on a pro rata basis (or ~~any Incremental~~ on a basis that is less than pro rata) with the other Term ~~Commitments~~Loans, ~~no consent shall be required from the Administrative Agent or any of the Lenders~~ but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the ~~extent that such financial maintenance covenant is also added for the benefit of any Tranche B~~ other Term ~~Loans remaining outstanding after the effectiveness of such Incremental Facility Agreement);~~ Loans, (viv) 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 thereunder shall rank pari passu in right of ~~payment~~ payment, and ~~of security~~ shall be secured by the Collateral on an equal and ratable basis, with the ~~Revolving~~ other Loans, and shall be extensions of credit to the Borrower that are Guaranteed only by the Loan Parties, and (v) except for the terms referred to above and subject to paragraph (c) of this Section and except with respect to “effective yield” and components thereof, fees, prepayment terms (including any restrictions thereon), premiums, escrow provisions and except as otherwise permitted herein, (A) the terms of any Incremental Term Loans shall not be materially more restrictive (when taken as a whole and as determined by the Borrower) on the Borrower and its Subsidiaries than those applicable to the Tranche A Term ~~Loans;~~ Loans (except to the extent such terms are applicable only to periods after the Tranche A Term Maturity Date) or (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~~ terms of such Incremental ~~Revolving Commitments;~~ Term Loans that are more favorable to the Incremental Lenders thereof than those contained in this Agreement and the other Loan Documents are then conformed (Cor added) to this Agreement or the applicable other Loan Documents for the benefit of all the Lenders. In the event any Incremental Term Loans have (or, in the case of any Incremental Term Loans the proceeds of which are subject to escrow, upon the release of such proceeds will have) the ~~borrowing and repayment~~ same terms as any existing Class of Term Loans then outstanding or any Term Loans then substantially concurrently established under Section 2.21 or 2.22 (~~except~~ in each case, disregarding any differences in original issue discount or upfront fees or scheduled amortization if not affecting, or is required to preserve, the fungibility thereof for ~~(1) payments of interest and fees at different rates on Incremental Revolving Commitments (and related outstandings~~U.S. federal income tax purposes), ~~(2) repayments required upon~~ such Incremental Term Loans may, at the ~~maturity date~~ election of the ~~Incremental Revolving Commitments~~ Borrower, be treated as a single Class with such outstanding Term Loans or such other Term Loans, and ~~(3) repayment made~~ the scheduled amortization installments set forth in ~~connection with a permanent repayment and termination of commitments (subject to clause (D) below)) of Loans~~ Section 2.09 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~~ of Term Loans may be increased to ~~any other Class with a later maturity date than~~ reflect scheduled amortization of such ~~Class~~Incremental Term Loans. (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~~subject to Sections 1.08 and 2.20(h), ~~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 assuming that the ~~making~~ full amount of such Incremental Commitments shall have been funded as Loans ~~thereunder to be made~~ on such date), no Default shall have occurred and be continuing or would result therefrom, (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~~subject to Sections 1.08 and 2.20(h), on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made on such date and the use of proceeds thereof, the representations and warranties of each Loan Party 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,~~ 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, (iii) subject to Sections 1.08 and 2.20(h), after giving effect to such Incremental Commitments (and assuming that the ~~making~~ full amount of such Incremental Commitments shall have been funded as Loans on such date, but without netting the cash proceeds thereof in the calculation of the Consolidated Total Net Leverage Ratio), and ~~other extensions of credit thereunder to be made~~ any related transaction, on ~~the date of effectiveness thereof~~a Pro Forma Basis, the Borrower shall be in compliance with the ~~Financial Covenants~~ covenants set forth in ~~Section~~ Sections 6.12 and 6.13 (~~Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended~~ in each case, calculated as of the ~~date~~ last day of ~~effectiveness of such Incremental Commitments on a pro forma basis and~~ or for the Test Period then most recently ended), (iv) the Borrower shall have ~~delivered or caused to have been~~ delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other closing documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 4.01 of the Original Credit Agreement on the Original Effective Date) by the Administrative Agent in connection with any such ~~transaction.~~ transaction and (dv) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent ~~agreed~~ required to be paid pursuant to agreements entered into by the Borrower and the applicable Incremental Lenders ~~providing such~~ or arrangers in respect of any Incremental Commitments, the conditions precedent to the Borrower’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), Borrower shall have ~~occurred~~ paid any applicable upfront, arrangement or similar closing fees due 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and warranties set forth in Article III payable 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) Commitments. 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~~Agent and the Borrower, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments ~~that are not adverse to the interests of any Lender that are made to effectuate changes~~ necessary to ~~enable~~ establish new Classes of Loans and/or Commitments hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Loans and Commitments may be included in the definitions of “Majority in Interest” and “Required Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any ~~Incremental Loans~~ other consent of Lenders that might otherwise be required under Section 9.02)) or to ~~be fungible for United States federal income tax purposes with~~ reflect an increase in any existing Class of ~~Term Loans~~Loans and/or Commitments and any technical amendments relating thereto (including to enable such new Class of Loans or Commitments to be extended or modified under Section 2.21 or refinanced under Section 2.22). The Administrative Agent agrees that its consent to any amendment to this Agreement or any other Loan Document as contemplated above, ~~which shall include~~ or to the form or substance of any ~~amendments that do~~ Incremental Facility Agreement, will not ~~reduce the ratable amortization received by each Lender thereunder~~be unreasonably withheld, delayed or conditioned. (fd) 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 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”. ~~Any~~ For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposures and 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) each Incremental Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments ~~established~~ 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 Revolving Borrowings then outstanding 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 such Borrowings, (ii) each Incremental Revolving Lender that shall not 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 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 Revolving Borrowings then outstanding, (iii) after the Administrative Agent receives the funds specified in clauses (i) and (ii) 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 Revolving Borrowings then outstanding, 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 such Borrowings and (iv) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Revolving Borrowing then outstanding (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments). The payments made pursuant to ~~an Incremental Facility Agreement that have identical terms and conditions~~clause (iii) above, ~~and any Incremental Loans made thereunder~~to the extent relating to Term SOFR Borrowings, shall be ~~designated as a separate series (each a “Series”)~~ subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Incremental Revolving Commitments ~~and Incremental Loans for all purposes~~ occurs other than on the last day of ~~this Agreement~~the Interest Period relating thereto. (gf) 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~~ Class shall make a ~~loan~~ Loan of such Class to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section ~~2.21(a~~2.20(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.20(e). (~~Incrementa~~h) Notwithstanding anything to the contrary in this Section 2.20 or in any other provision of any Loan Document, if any Incremental Term Commitments are to be established in connection with a Limited Conditionality Transaction (including in connection with any repayment or incurrence of Indebtedness in connection therewith) and the Incremental Lenders providing such Incremental Term Commitments so agree, the conditions to effectiveness of such Incremental Term Commitments set forth in Sections 2.20(c)(i), 2.20(c)(ii) and 2.20(c)(iii) may be modified as agreed by the Borrower and such Incremental Lenders to limit such conditions to customary “SunGard” or “certain funds” conditionality.

Appears in 1 contract

Sources: Amendment and Restatement Agreement (MediaAlpha, Inc.)

Incremental Facilities. (a) ~~The Borrower may on one or more occasions~~ At any time during the period from and after the ~~Closing Date, by written notice~~ SixthEighth Amendment Effective Date through but excluding the date that is the five year anniversary of the Sixth Amendment Effective Date (but prior to the ~~Administrative Agent~~Maturity Date), ~~request~~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 amount set forth in clause (a) of the definition of Available Revolver Increase Amount (each such increase, an "Increase"); provided, that in no event shall an Increase be in 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 ▇▇▇▇▇▇▇▇▇, 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 $1,000,000 in excess thereof; provided, that if the remaining Available Revolver Increase Amount is less than $25,000,000, such Increase shall be required to be in the amount of the remaining Available Revolver Increase Amount. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.17 on more than three (3) occasions in the aggregate for all such Increases from and after the Eighth Amendment Effective Date. (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 (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~~ "Increase Joinder"), in ~~any Revolving Commitments~~ form and substance reasonably satisfactory to Agent, to which such Lenders (~~each~~or prospective lenders), ~~a “Revolving Commitment Increase”~~ Borrowers, and ~~the commitments in respect thereof, “Incremental Revolving Commitments”)~~Agent are party, (ii) ~~one or more new term loan commitments~~ each of the ~~same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or~~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 addition of one or more 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 FacilitiesBorrowers, 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) 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 twelve months (on a quarter by quarter 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 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made ~~thereunder~~ pursuant to the increased Revolver Commitments shall be ~~set forth in an Incremental Facility Agreement; provided that, in any event, (i) if~~ the ~~Weighted Average Yield~~ same as the interest rate margin applicable to ~~any Incremental Term~~ Revolving Loans ~~issued on or~~ hereunder immediately prior to the ~~date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Increase Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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) defined 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~~ Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be ~~effected~~ deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to ~~one or more Incremental Facility Agreements executed and delivered by~~ the ~~Parent, the Borrower, each Incremental Lender providing such Incremental~~ increased Revolver 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 Maximum Revolver Amount pursuant to this Section 2.17. (d) ~~below~~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"), ~~no Default or Event of Default~~ and such Post-Increase Revolver Lenders shall ~~have occurred and be continuing on~~ purchase from each Pre-Increase Revolver Lender, at the ~~date of effectiveness~~ principal amount thereof, ~~both immediately prior~~ 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 ~~immediately~~ 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 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental increased Revolver Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~The Revolving Loans, ~~without~~ Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.17 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the ~~consent of any Lender~~benefits afforded by, ~~effect such amendments to~~ 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 ~~as may~~ continue to be ~~necessary~~ perfected under the Code or ~~appropriate, in the opinion of the Administrative Agent, to give~~ otherwise after giving 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 Borrower in connection with the establishment of any such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) 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 Revolver 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. 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 Commitments and Incremental Loans for all purposes of this AgreementMaximum Revolver Amount. (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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Liberty Energy Inc.)

Incremental Facilities. (a) ~~The Borrower may on~~ On one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request: (i) an increase in any Revolving~~ during the Availability Period, the Borrower may request the establishment of Incremental Commitments and/or the establishment of Additional Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, 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 in each case that the aggregate amount of all the Incremental Commitments ~~at any time~~ and/or Additional Commitments established hereunder shall not exceed $120,000,000 (the ~~Permitted~~ “Incremental ~~Amount applicable~~ Limit”); provided that Additional Commitments with respect to Loans that mature after the Maturity Date may be provided without being applied to the Incremental Limit to the extent that the existing Commitments ~~at such time less~~ are permanently reduced in accordance with Section 2.08 by an amount equal to the aggregate amount of ~~Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~Additional Commitments so provided. Each such notice shall specify (iA) the date on which the Borrower proposes that the Incremental Commitments or Additional Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten (10)~~ 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~~ Agent, (iiB) the amount of the Incremental Commitments or Additional Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment or Additional Commitment may elect or decline, in its sole discretion, to provide such Incremental 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)~~ or Additional Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender or Additional Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible ~~Assignee~~ Assignee, a Purchasing Debt Affiliate or a non-Debt Fund Affiliate and must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Lender or Additional Lender, each Issuing Bank and the Swingline Lender), and (C) (x) the applicable termination date in respect of such commitments, (y) the Applicable Margin and (z) the commitment fee rate. (b) The material terms and conditions of ~~the~~ any Incremental ~~Commitments~~ Commitment and ~~the Incremental~~ Loans and other extensions of credit to be made thereunder not set forth herein, shall be substantially identical to those of the Commitments and Loans and other extensions of credit made pursuant to Commitments hereunder or otherwise reasonably acceptable to the Administrative Agent, and shall be treated as a single Class with such Commitments and Loans and extensions of credit. The material terms and conditions of any Additional Commitments and Additional Loans shall be, except as otherwise set forth herein or in an the applicable Incremental Facility ~~Agreement~~Agreement or otherwise reasonably acceptable to the Administrative Agent, substantially identical to those of the Commitments and Loans, as applicable (provided that (A) terms not substantially identical to the Facility that are applicable only after the Maturity Date shall not be subject to Administrative Agent consent and (B) each Incremental Commitment or Additional Commitment shall share ratably in payment, borrowing and commitment reductions (except for payments of interest rates and fees at different rates on any Incremental Commitment or Additional Revolving Commitment (and related outstandings), repayments required upon the Maturity Date or the Additional Loan Maturity Date, as applicable, and repayment made in connection with a permanent repayment and termination of commitments of the Facility, unless the Borrower and the lenders in respect of the applicable Incremental Facility elect lesser payments); provided ~~that, in any event,~~ that (i) no Additional Loan Maturity Date shall be earlier than the Maturity Date, (ii) no Additional Loans shall require any scheduled amortization or mandatory commitment reduction prior to the Maturity Date, (iii) any Additional Loans shall rank (A) pari passu or junior in right of payment to the Loans and (B) with respect to security, pari passu or junior with the Loans, subject to intercreditor arrangements to be reasonably acceptable to the Administrative Agent and (iv) on or prior to September 28, 2014, if the Weighted Average Yield applicable to any ~~Incremental Term~~ Additional Loans ~~issued~~ that are secured on ~~or prior to~~ a pari passu basis with the ~~date that is twelve (12) months after the Closing Date~~ initial Loans exceeds by more than ~~0.50~~0.5% 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~~ the initial 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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~~ for the ~~Term SOFR or Alternate Base Rate floors (but not~~ initial Loans shall automatically be increased so that the ~~applicable rate)~~ Weighted Average Yield applicable to the ~~existing Term~~ Additional Loans ~~shall be increased~~ is not more than 0.5% per annum higher than that applicable to the ~~extent of such differential between interest rate floors; (ii) the weighted average life~~ initial Loans. Any Additional Commitments established pursuant to maturity of any Incremental Term Loans shall be no 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 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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~~ Agreement, and ~~the Incremental Lenders and (y) all other terms of~~ any ~~Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect~~Additional Loans made thereunder, shall be ~~reasonably satisfactory to the Administrative Agent~~ designated as a separate series (~~except for covenants~~ each a “Series”) of Additional Commitments 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 Additional Loans, as ~~specified in~~ the ~~applicable Incremental Facility Agreement; (vi) any Incremental Commitments and Incremental Loans shall~~case may be, ~~as elected by the Borrower, be equal or junior in right~~ for all purposes 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 and other extensions of credit thereunder to be made on such date, (ii) ~~except as otherwise agreed by~~ the ~~Lenders providing the relevant Incremental Facility~~ Borrower shall make any payments required to be made pursuant to Section 2.16 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 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~~ related transactions under this 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 Commitments on a pro forma basis~~ and (iviii) the Borrower shall have ~~delivered or caused to have been~~ delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other similar documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~Commitment, (A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be ~~designated~~ increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series”)~~ Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Commitment, the Exposure of the Incremental Lender holding such Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Lenders, shall automatically be adjusted to give effect thereto. (ge) ~~Subject~~ On the date of effectiveness of any Incremental Commitments, each Lender shall assign to each Incremental Lender holding such Incremental Commitment, and each such Incremental Lender shall purchase from each 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 (including such Incremental Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitment. (f) Upon request by the Borrower, on and after the date of effectiveness of Additional Commitments of any Series, subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Additional Lender holding an ~~Incremental~~ Additional Commitment of ~~any~~ such Series shall make ~~a loan~~ extensions of credit to the Borrower in an amount ~~equal~~ not to exceed such ~~Incremental Commitment on the date specified in such Incremental Facility Agreement~~Additional Lender’s Additional Commitment. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section ~~2.21(a~~2.22(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Commitments, of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.22.

Appears in 1 contract

Sources: Credit Agreement (PetroLogistics LP)

Incremental Facilities. (a) The Borrower may on one or more occasions after the Closing Date, by written notice to the Administrative Agent, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ request the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments~~ establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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~~ Term Loans incurred under this Section 2.21 on any ~~time~~ 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 the ~~Permitted~~ greater of (x) an amount equal to the Base Incremental Amount ~~applicable~~ in effect on such date, and (y) an amount subject to the Maximum Incremental ~~Commitments at~~ Amount as of such ~~time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~date. Each such notice shall specify (iA) the date on which the Borrower proposes that the Incremental ~~Commitments~~ Term Commitments, as applicable, shall be effective, which shall be a date not less than ~~ten (10)~~ 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~~ Agent, and (iiB) the amount of the Incremental ~~Commitments~~ Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Term 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible ~~Assignee and must be reasonably acceptable to the Administrative Agent~~Assignee). (b) The terms and conditions of ~~the~~ any Incremental ~~Commitments~~ Term Facility and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility ~~Agreement~~Amendment, identical to those of the Term Commitments and the Term Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield~~ upfront fees, interest rates and amortization schedule applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, then the Applicable Margin then in effect for Tranche B Facility and Incremental Term Loans shall ~~automatically~~ be ~~increased to a level such that~~ determined by the ~~Weighted Average Yield with respect to~~ Borrower and 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term ~~Loans or~~ Lenders providing the relevant Incremental ~~Revolving Loans~~Term Commitments, (ii) except in the case of an Incremental Term Facility effected as ~~applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable~~ an increase to ~~any~~ an 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B~~ Terms Loans with the latest Maturity Date, (iii) if the weighted average yield relating to any Incremental Term Loan exceeds the weighted average yield relating to the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (~~without~~ to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to ~~prior prepayments~~ 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 the Initial Term Loans would ~~otherwise modify~~ result in an increase in an interest rate then in effect for the Initial Term Loans hereunder)), then the Applicable Rate relating to the Initial Term Loans shall be adjusted so that the weighted average ~~life~~ yield relating to ~~maturity of~~ such Incremental Term Loans shall not exceed the ~~Tranche B~~ weighted average yield relating to the Initial Term ~~Loans);~~ Loans by more than 0.50% and (~~iii~~iv) no Incremental Term Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date~~); (iv) (x) subject~~ . Any Incremental Term Commitments established pursuant to ~~clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any~~ an Incremental Facility ~~shall be determined by the Borrower~~ Amendment that have identical terms and ~~the Incremental Lenders~~ conditions, and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ made thereunder, shall be designated as a separate series (each a “Series”) of 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 Commitments and 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~~ for all purposes of ~~the Term Loans, as specified in the applicable~~ this Agreement. Each Incremental Facility ~~Agreement; (vi) any Incremental Commitments~~ and ~~Incremental Loans shall, as elected by the Borrower, be equal or junior in right~~ all extensions 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~~ credit thereunder shall ~~not~~ be secured by ~~any assets other than~~ the Collateral on a pari passu basis with the Liens on 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 ClassLoan Document Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility ~~Agreements~~ Amendments 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 (or, in the case of any Incremental Acquisition Term Facility, 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 ~~making~~ full amount of such Incremental Commitments shall have been funded as 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 of each Loan Party set forth in ~~Article III and~~ the Loan Documents (or, in the ~~other Loan Documents~~ case of any Incremental Acquisition Term Facility, the Specified Representations and the Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of ~~the~~ such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each ~~case,~~ 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, (iii) ~~after giving effect~~ the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with 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~~ related transactions under this 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 Commitments on a pro forma basis~~ 2.21 and (iv) the Borrower shall have delivered ~~or caused to have been delivered~~ to the Administrative Agent such ~~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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.21. (fd) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 Commitments and Incremental Loans for all purposes of this Agreement. (ge) [RESERVED] (f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility ~~Agreement~~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 ~~Agreement~~Amendment. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof.

Appears in 1 contract

Sources: Credit Agreement (Orbotech LTD)

Incremental Facilities. (a) The Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent~~Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof,~~ “Incremental Revolving Credit Commitments”~~), (ii~~) and/or increase the existing Term Commitments or incur one or more new term loan commitments of (the ~~same Class as any outstanding~~ “Incremental Term Loan ~~(each, a “Term Loan Increase~~Commitments”), or by an amount (~~iii~~1) not to exceed in the ~~addition~~ aggregate, at the time of ~~one or more new tranches of term loans~~ incurrence the Incremental Available Amount and (~~each~~2) not less than, ~~an “~~individually, $25,000,000. All Incremental Term ~~Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving~~ Loan Commitments, ~~the “Incremental Commitments”; the loans made pursuant to such commitments, “~~Incremental Term Loans”; , Incremental Revolving 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~~ Credit 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~~ be in Dollars. (wb) ~~of the definition of “Permitted Debt”.~~ 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 ~~ten (10)~~ 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 (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion); and (ii) the ~~amount~~ 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 ~~being requested (it being agreed that (x) any~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide ~~such~~ an Incremental Revolving Credit Commitment ~~(and~~ or Incremental Term Loan Commitment; provided that if any such Lender ~~that fails to~~ does not respond to within the specified time period, such ~~approach~~ Lender shall be deemed to have declined to provide such Incremental ~~Commitment~~Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable. 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 may be treated as part of the same Class as any other Incremental 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 ~~may be~~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 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 thereunder on such date; and (y) ~~any Person that~~ the representations and warranties of the Borrower ~~proposes~~ and each other Loan Party contained in Article V hereof shall be true and correct in all material respects (except that any representation and warranty that is qualified as to ~~become an Incremental Lender~~“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, ~~if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable~~ except in each case to the ~~Administrative Agent). (b) The terms~~ extent that such representations and ~~conditions of the Incremental Commitments and the Incremental Loans~~ warranties specifically refer to ~~be made thereunder~~ an earlier date, in which case they shall be ~~set forth in an Incremental Facility Agreement~~true and correct as of such earlier date); provided that, in ~~any event, (i) if~~ the ~~Weighted Average Yield applicable to any~~ case of Incremental Term Loans ~~issued on or prior~~ incurred to ~~the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement~~finance a Permitted Acquisition, as amended through the date of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only~~ i)(y) shall be limited to the extent an increase in the Term SOFR or 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 such differential between interest rate floorsSpecified Representations; (ii) the ~~weighted average life~~ Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to ~~maturity~~ 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 the Guarantors and rank pari passu in right of security with the other Facilities; (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 (including, if applicable, the Mortgages and related documents required pursuant to Section 6.11(b) or modifications of any Mortgages and title insurance endorsements or policies) 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 “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit 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, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions) 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 terms of such Indebtedness (other than with respect to pricing, premiums, fees, rate floors and/or optional prepayment provisions) shall not be materially more restrictive, taken as a whole, to the Borrower and the 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 (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 Weighted Average Life to Maturity of all Incremental Term Loans of any such Indebtedness shall be no shorter than the ~~remaining weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of any other Term Loans at the time of the ~~Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity~~ incurrence of ~~the Tranche B~~ such Incremental Term Loans); , (iii) no the applicable Incremental Term Loan Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which each Class shall be no ~~earlier~~ shorter than the ~~initial Tranche B~~ Latest Maturity Date at the time of the incurrence of such Incremental Term ~~Maturity Date);~~ Loans, (iv) ~~(x)~~ the pricing of each Class of Incremental Term Loans may be subject to ~~clauses (ii)~~ “most favored nations” provisions if 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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ set forth in the Joinder Agreement for ~~the benefit of any Incremental Term Loans or any Incremental Term Commitments~~such Class, 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); and (v) ~~any~~ in the case of Incremental Term ~~Loans~~ Loans, such Indebtedness 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~~Loans hereunder, as specified in the applicable Joinder Agreement, and in the case of Incremental ~~Facility~~ Revolving Credit Commitments, such Incremental Revolving Credit Commitments may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory reductions of Revolving Credit Commitments hereunder, as specified in the applicable Joinder Agreement;; provided, further, that, notwithstanding the foregoing, in the case of Incremental Term Loans that amortize at not more than 1.0% per annum prior to the applicable Incremental Term Loan Maturity Date, the Joinder Agreement may include a customary excess cash flow mandatory prepayment provision requiring the Borrower to prepay amounts outstanding under such Incremental Term Loans with excess cash flow on an annual basis. (vih) ~~any Incremental Commitments~~ The terms and ~~Incremental Loans shall, as elected by the Borrower, be equal or junior in right~~ provisions 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~~ Loans and Incremental Revolving ~~Loans~~ Credit Commitments shall be identical to the other Revolving ~~Commitments~~ Credit Loans of the Class being so increased and the Revolving ~~Loans, other than as to their Maturity Date and as set forth in this Section 2.21 (Incremental Facilities)~~Credit Commitments of the Class being so increased; 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 that if the Incremental Revolving ~~Commitments and (3) repayment made~~ Loan Lenders require an interest rate in ~~connection with a permanent repayment and termination~~ excess of ~~commitments (subject~~ the interest rate then applicable to ~~clause (D) below))~~ the Revolving Credit Facility of ~~Loans with respect to Incremental~~ the Class being so increased, the interest rate on the Revolving ~~Commitments~~ Credit Facility of such Class shall be ~~made on a pro rata basis with all other Revolving Commitments on~~ increased to equal such required rate without further consent of 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 Classaffected Lenders. (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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ Joinder Agreement may, without the consent of any ~~Lender~~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 ~~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~~ Section 2.14 (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 Borrower in connection with the establishment of such new tranches or sub-tranches, 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 ~~for United States federal income tax purposes~~ with ~~an existing Class of~~ such other Term Loans, which shall include any amendments that do modify the aggregate principal amount of scheduled installment payments to the extent such amendment does not ~~reduce~~ decrease the ~~ratable amortization~~ installment payment an existing Term Lender would have received ~~by each Lender thereunder~~prior to giving effect to any such amendment). (fj) ~~Upon the effectiveness of an Incremental Commitment of~~ This Section 2.14 shall supersede any ~~Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender~~ provisions 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 (~~Section 2.13 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 Commitments and Incremental Loans for all purposes of this Agreement. (g) Subject Section 10.01 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 Agreementcontrary. ~~(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 2.21(a) (Incrementa~~

Appears in 1 contract

Sources: Credit Agreement (Healthequity, Inc.)

Incremental Facilities. (a) The Borrower ~~may on one~~ may, any time or ~~more occasions~~ from time to time after the ~~Closing~~ Funding Date, by written notice to the Administrative ~~Agent, request:~~ Agent (i) an ~~increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof,~~ “Incremental ~~Revolving Commitments~~Facility Request”), ) request (iix) ~~one~~ the establishment of incremental or ~~more new~~ additional term loan ~~commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans~~ facilities (each, an “Incremental Term Facility”; , the commitments ~~in respect thereof~~ thereunder, the “Incremental Term Commitments” and ~~together~~ the loans thereunder, the “Incremental Term Loans”) and (y) the establishment of incremental or additional revolving loan facilities (each, an “Incremental Revolving Facility”, the commitments thereunder, the “Incremental Revolving Commitments” and the loans thereunder, the “Incremental Revolving Loans”). Any such Incremental Facility may be implemented by increasing the amount of loans and commitments under an existing Facility or by adding a new facility to this Agreement. Subject to the terms and conditions set forth in this Section 2.20, the Incremental Term Facilities shall be funded or the Incremental Revolving Commitments shall become available on the relevant Increased Amount Date; provided that no Incremental Facility shall be incurred on such date to the extent that the aggregate principal amount of such Incremental Facility when combined with the aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt incurred prior to such date exceeds the sum of: (i) the greater of (A) $690,000,000 and (B) 100% of LTM EBITDA (the “Free and Clear Incremental Amount”), plus (ii) an amount equal to the aggregate principal amount of all voluntary prepayments (but, with respect to the Initial Revolving Facility or any Incremental Revolving Facility, only to the extent such voluntary prepayment is accompanied by a permanent reduction of the Initial Revolving Commitments or applicable Incremental Revolving Commitments) of the Initial Revolving Loans, Initial Term Loans or any Incremental Loans or Incremental Equivalent Debt that, in each case, is secured on a pari passu basis with the Initial Facilities prior to the date of such incurrence, in each case, so long as an such voluntary prepayment was not funded with the proceeds of Long Term Debt (the “Voluntary Prepayment Amount”), plus (iii) an amount such that, after giving effect to the incurrence of such amount and the use of proceeds thereof, (A) in the case of any Incremental Facility that is secured on a pari passu basis with the Initial Facilities, the First Lien Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, does not exceed 3.25:1.00, (B) in the case of any Incremental Facility that is secured on a junior basis to the Initial Facilities, the Secured Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, does not exceed 3.50:1.00 and (C) in the case of any Incremental Facility that is unsecured, the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, is greater than 2.00:1.00 (provided that the amount of Indebtedness for purposes of such calculation of the First Lien Net Leverage Ratio or Secured Net Leverage Ratio, as applicable, shall (1) not include any principal amount of Incremental Facilities and Incremental Equivalent Debt which is being incurred simultaneously or substantially simultaneously by utilizing the Free and Clear Incremental Amount and (2) assume the Incremental Revolving Commitments, if applicable, are fully drawn) (the “Incurrence-Based Incremental ~~Commitments~~Amount”~~; the loans made pursuant to such commitments~~, ~~“Incremental Term Loans”;~~ and ~~the Incremental Term Facilities,~~ together with the ~~Revolving Commitment Increases~~ Free and Clear Incremental Amount and the ~~Term Loan Increases~~Voluntary Prepayment Amount, the “Incremental ~~Facilities~~Availability Amount”)~~; provided~~ . The Borrower may elect to incur any Incremental Facility or Incremental Equivalent Debt by utilizing the Incurrence-Based Incremental Amount, the Free and Clear Incremental Amount, the Voluntary Prepayment Amount, or any combination thereof. For purposes of the forgoing incurrence test, it is understood and agreed that the ~~aggregate amount~~ proceeds of ~~all~~ the applicable Incremental ~~Commitments at any time~~ Facility shall not ~~exceed~~ be netted against the ~~Permitted Incremental Amount~~ applicable to Indebtedness included in the ~~Incremental Commitments at such time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w)~~ calculation of the ~~definition of “Permitted Debt”.~~ First Lien Net Leverage Ratio or Secured Net Leverage Ratio, as applicable. (b) Each such ~~notice~~ Incremental Facility Request shall specify ~~(i)~~ the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments and Incremental Loans shall be ~~effective~~made available, which shall be a date not less than ~~ten~~ five (105) 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~~ (iior such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion). The Borrower shall notify the Administrative Agent in writing of the identity of each Lender or other Person (each, an “Incremental Lender”) to whom the ~~amount~~ Incremental Commitments have been allocated, which allocation shall be made at the Borrower’s sole discretion. Any Lender approached to provide all or a portion of the Incremental Commitments ~~being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment~~ may elect or decline, in its sole discretion, to provide ~~such~~ an Incremental 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~~ it being understood that the Borrower ~~proposes~~ has no obligation to ~~become an Incremental~~ approach any Lender, if and no Lender is committing to provide any Incremental Commitment until such ~~Person is not then~~ time as such Lender agrees in writing to provide all or a ~~Lender, an Affiliate~~ portion of ~~a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to~~ the ~~Administrative Agent~~applicable Incremental Commitment). (bc) ~~The terms and conditions~~ As of ~~the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in~~ any ~~event,~~Increased Amount Date: (i) no Default or Event of Default shall exist and be continuing or would immediately result from the incurrence of such Incremental Facility; provided, that solely with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, any Default or Event of Default (other than a Default or Event of Default under Section 7.01(b), (c), (h) or (i)) may be limited or waived solely for purposes of satisfying this Section 2.20(c)(i) by the applicable Incremental Lenders without the consent of the Administrative Agent or any other Lender; (ii) the Borrower shall be in compliance with Section 6.11 on a Pro Forma Basis and the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in Section 2.20(c)(i), this Section 2.20(c)(ii) and Section 2.20(c)(iii); (iii) the representations and warranties of each Loan Party contained in Article III or any other Loan Document shall be true and correct in all material respects (provided, that, solely with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, only the Specified Representations (conformed as necessary for such transaction) and customary specified representations contained in the definitive acquisition agreement for such Limited Condition Acquisition shall be required to be true and correct in all material respects) (provided, that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, 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) in all respects on such respective dates); (iv) for any Incremental Facility that increases the Loans and/or Commitments under an existing Term Loan Facility or existing Revolving Facility, as applicable, all terms thereof shall be on the same terms of such existing Term Loan Facility or existing Revolving Facility, as applicable, including with respect to maturity date and interest rates but excluding, unless any such difference in original issue discount or upfront fees would cause any such Incremental Term Facility to not be fungible with the applicable existing Term Loans, original issue discount or upfront fees, and pursuant to the same documentation (other than any amendment evidencing such Incremental Facility); (v) to the extent that such Incremental Facility is not made as part of any existing Term Loan Facility or existing Revolving Facility, as applicable, the terms and provisions of such Incremental Facility shall be consistent with such existing Term Loan Facility or existing Revolving Facility, as applicable, provided, that: (A) the interest rates applicable to such Incremental Facility shall be as agreed between the Borrower and the applicable Incremental Lenders providing such Incremental Commitments; provided that if the ~~Weighted Average~~ All-In Yield applicable to any Incremental Term ~~Loans issued~~ Facility or any Incremental Equivalent Debt incurred in the form of term loans, in each case that is (x) incurred on or prior to the date that is twelve (12) months after the ~~Closing~~ Funding Date ~~exceeds by~~ and (y) secured on a pari passu basis with the Initial Term Facility, shall be more than 0.50% per annum higher than the ~~applicable Weighted Average~~ corresponding All-In Yield ~~payable pursuant to~~ on the ~~terms~~ Initial Term Facility as of ~~this Agreement, as amended through~~ the date of ~~such calculation, with respect to Tranche B Term Loans~~incurrence, then the ~~Applicable Margin then in effect for Tranche B~~ All-In Yield applicable to the Initial Term ~~Loans~~ Facility shall ~~automatically~~ be increased to ~~a level~~ cause the then applicable All-In Yield of the Initial Term Facility to equal the All-In Yield then applicable to such ~~that the Weighted Average Yield with respect to the Tranche B~~ Incremental Term ~~Loans is~~ Facility minus 0.50% per annum ~~below~~ (this provision, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans“MFN Protection”); ~~provided, that,~~ provided that if any Incremental Term Loans ~~or Incremental Revolving Loans, as applicable,~~ include a ~~Term SOFR~~ Eurodollar Rate floor or ~~Alternate Base Rate~~ ABR floor that is greater than the ~~Term SOFR~~ Eurodollar Rate floor or ~~Alternate Base Rate~~ ABR floor applicable to any ~~existing Class of~~ Initial Term Loans, such differential between ~~interest rate~~ Eurodollar Rate floors or ABR floors, as applicable, shall be included in the calculation of ~~Weighted Average~~ All-In Yield for purposes of this clause (~~i),~~ A) but only to the extent an increase in the ~~Term SOFR~~ Eurodollar Rate floor or ~~Alternate Base Rate~~ ABR floor applicable to the ~~existing~~ Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the ~~Term SOFR or Alternate Base~~ Eurodollar Rate ~~floors~~ floor and ABR floor (but not the ~~applicable rate~~Applicable Margin) applicable to the ~~existing~~ Initial Term Loans shall be increased to the extent of such differential between ~~interest rate floors~~Eurodollar Rate floors or ABR floors as the case may be; (iiB) subject to the ~~weighted average life to~~ Permitted Earlier Maturity Exception, the final maturity ~~of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche B Term Loans~~ date under (~~without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans); (iii~~x) ~~no Incremental Maturity Date of~~ any Incremental Term Facility shall not be earlier than the ~~initial Tranche B Term~~ Final Maturity Date of the Initial Term Facility and (~~other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either~~ y) any Incremental Revolving Facility shall not be ~~automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no~~ earlier than the ~~initial Tranche B Term~~ Final Maturity ~~Date)~~Date of the Initial Revolving Facility; (ivC) subject to the Permitted Earlier Maturity Exception, (x) ~~subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ the amortization ~~schedule applicable to~~ requirements for any Incremental Term Facility shall be determined by the Borrower and the Incremental Lenders thereunder so long as the Weighted Average Life to Maturity applicable to any Incremental Term Facility shall be equal to or greater than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any prepayments (other than amortization)), and (y) ~~all other terms of~~ any Incremental ~~Term Facility, if~~ Revolving Facility shall not ~~consistent with~~ have any scheduled amortization or mandatory commitment reductions prior to the ~~terms~~ Final Maturity Date of the Tranche B Term Facility in any 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)Initial Revolving Facility; (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 (viiiD) 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 Facility shall rank pari passu or junior in right of payment and of security with the ~~Revolving Loans and~~ Initial Facilities or may be unsecured (and, to the ~~Term Loans~~extent such Incremental Facility is secured on a pari passu basis such Incremental Facility shall be subject to the Intercreditor Agreement, to the extent such Incremental Facility is secured by Liens that rank junior in priority to the Liens securing the Obligations under the Initial Facilities, such Incremental Facility shall be subject to the Junior Lien Intercreditor Agreement and, to the extent such Incremental Facility is subordinated in right of payment to the Obligations under the Initial Facilities, such Incremental Facility shall be subject to a subordination agreement reasonably satisfactory to the Administrative Agent); (BE) ~~any~~ regardless of whether such Incremental Facility is created or incurred under the Loan Documents, such Incremental Term Facility shall not be (x) guaranteed by any Person who is not, or will not then be a Guarantor or (y) secured by any assets not constituting or which will not then constitute Collateral under the Loan Documents; provided, except as otherwise required or expressly permitted by Sections 2.20(c)(v)(A)-(E) above, (w) if the terms of such Incremental Facility are not consistent with the Initial Term Facility or the Initial Revolving ~~Commitments or~~ Facility, as applicable, the terms and provisions shall be reasonably satisfactory to the Administrative Agent unless such terms are (1) added for the benefit of all Lenders (or, in the case of a financial covenant with respect to an Incremental Revolving ~~Loans shall not mature earlier than~~ Facility, the ~~latest~~ Revolving Lenders) pursuant to an Incremental Amendment or (2) are only applicable to periods after the Final Maturity Date of the Term Loan Facility and (x) in the case of any ~~Revolving Loans outstanding at the time of incurrence of such~~ Incremental Revolving ~~Commitments;~~ Facility, (C1) the borrowing and repayment (except for (1I) payments of interest and fees at different rates on Incremental Revolving Commitments (and related outstandings), (2II) repayments required upon the maturity date of ~~the Incremental~~ any Revolving ~~Commitments~~ Facility and (3III) repayment made in connection with a permanent repayment and termination of ~~commitments~~ Revolving Commitments under any Revolving Facility (subject to clause (D2) below)) of Revolving Loans ~~with respect to~~ after the effective date of such Incremental Revolving Commitments shall be made on a pro rata basis or less than pro rata basis with all other Revolving ~~Commitments on the Incremental Facility Closing Date; and~~ Facilities, (D2) the permanent repayment of Revolving Loans with respect to, and termination of, Revolving Commitments under, any Revolving Facility after the effective date of any such Incremental Revolving Commitments shall be made on a pro rata basis or less than pro rata basis with all other Revolving ~~Commitments~~Facilities (or, ~~except that~~ to the ~~Borrower~~ extent such Incremental Revolving Commitments are terminated in full and refinanced or replaced with a Refinancing Revolving Facility or Refinancing Debt, on a greater than pro rata basis) and (3) assignments and participations of such Incremental Revolving Commitments and Incremental Revolving Loans in respect thereof shall be ~~permitted~~ governed by the same assignment and participation provisions applicable to ~~permanently repay~~ Revolving Commitments and ~~terminate commitments of any~~ Revolving Loans at such ~~Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class.~~time; and (cvi) ~~The~~ the terms of such Incremental ~~Commitments~~ Facility shall be effected pursuant to ~~one or more~~ an amendment to this Agreement (an “Incremental ~~Facility Agreements~~ Amendment”) executed and delivered by the ~~Parent~~Borrower, the ~~Borrower~~Administrative Agent and one or more Incremental Lenders; provided, ~~each Incremental Lender providing~~ that such Incremental ~~Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i~~Facility may participate in any mandatory prepayment under Section 2.09(b) 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 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 Commitments hereof on a pro ~~forma~~ rata basis ~~and~~ (~~iv) the Borrower shall have delivered~~ or ~~caused to have been delivered to the Administrative Agent such customary legal opinions~~on a basis less than pro rata), ~~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~~but not on a basis that is greater than pro rata. (d) ~~Notwithstanding~~ On any Increased Amount Date on which any Incremental Commitment becomes effective or Incremental Loans are funded, subject to the foregoing ~~provisions of this Section 2.21 (~~terms and conditions, each Incremental ~~Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition,~~ Lender to the extent ~~agreed by the applicable Lenders providing such Incremental Commitments~~not already a Lender, ~~the conditions precedent to the Borrower’s right to request such Incremental Commitments for~~ shall become a ~~Limited Condition Acquisition shall be limited to the following: (i) (x) on the date of execution of the definitive documentation~~ Lender hereunder with respect to such ~~Limited Condition Acquisition~~Incremental Commitment or Incremental Loan; provided, ~~all the requirements set forth in clause (c)(i) and (ii) above~~ that any Person that becomes an Incremental Lender that is not already a Lender hereunder shall be ~~satisfied and (y) on~~ reasonably satisfactory to the ~~date of closing of such Limited Condition Acquisition~~ Administrative Agent, the L/C Issuers and the ~~funding of~~ Borrower to the ~~applicable Incremental Loans, (A) no Event of Default~~ extent consent would be required under Section ~~7.01(b), (c), (g~~9.04(b) for an assignment of Commitments 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 transactionLender. (e) For purposes of this Agreement, any Incremental Loans shall be deemed to be Loans. Each Incremental ~~Facility Agreement~~ 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, 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 ~~Borrower in connection with~~ Borrower, to effect the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 Commitments and Incremental Loans for all purposes provisions of this ~~Agreement~~Section 2.20. (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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (DT Midstream, Inc.)

Incremental Facilities. (a) The Borrower ~~may on~~ and any one or more ~~occasions after~~ Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the ~~Closing Date,~~ amount of their Incremental Term Loans (which may be effected by ~~written notice~~ increasing the amount of any then existing Facility) by executing and delivering to the Administrative ~~Agent, request: (i)~~ Agent an ~~increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “~~Incremental ~~Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding~~ Term Loan Activation Notice specifying (~~each, a “Term Loan Increase”), or (iii~~v) the ~~addition~~ amount of one or more 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~~ applicable Incremental Term Loan Closing Date (~~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)~~ 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~~ (~~ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect~~ or ~~decline, in its sole discretion, to provide~~ such ~~Incremental Commitment (and any such Lender that fails to respond to such approach~~ earlier date as shall be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to agreed by the Administrative Agent). ), (bx) ~~The terms~~ the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and ~~conditions of~~ (z) the Applicable Margin for such Incremental ~~Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement~~Term Loans; ~~provided~~ provided, that~~, in any event,~~ (i) subject to Section 1.3, the aggregate amount of all Incremental Term Loans and Incremental Equivalent Indebtedness established on any date shall not exceed the Incremental Cap, (ii) except to the extent provided in Section 1.3 if the ~~Weighted Average Yield applicable to~~ proceeds of any Incremental Term Facility are being used to finance a Limited Condition Acquisition, each Incremental Term Facility shall be in a minimum aggregate principal amount of $25,000,000, (iii) the Incremental Term Loans ~~issued~~ in respect of any Incremental Term Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on ~~or prior~~ a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Term Loans and all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to prepayments on the ~~date that is twelve (12) months after~~ same basis as the ~~Closing Date exceeds by more than 0.50% per annum~~ Term B Loans unless the applicable ~~Weighted Average Yield payable pursuant to the terms of this Agreement~~Incremental Term Loan Activation Notice specifies a lesser treatment, ~~as amended through the date of~~ (v) such ~~calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B~~ Incremental Term Loans shall ~~automatically be increased~~ have a final maturity no earlier than the Latest Maturity Date (determined immediately prior 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~~ incurrence of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans)~~; provided~~, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (iivi) the weighted average life to maturity of ~~any~~ such Incremental Term ~~Loans~~ Facility shall be no shorter than ~~the remaining weighted average life to maturity~~ that of ~~the Tranche B~~ any existing Term Loans (~~without giving effect~~ except if required in order to ~~prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B~~ make such Incremental Term Loans fungible with any outstanding Term Loans); , (~~iii~~vii) ~~no Incremental Maturity Date~~ the all-in-yield (whether in the form of ~~any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date~~ interest rate margins, original issue discount, upfront fees or interest rate floors) and (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (iiv) and (~~iii~~vi) above~~, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the~~ ) amortization schedule applicable to ~~any~~ such Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental ~~Lenders~~ Term Facility, provided that, in the event that the all-in-yield for any Incremental Term Facility incurred on or prior to the six month anniversary of the Closing Date shall be more than 50 basis points higher than the corresponding all-in-yield for any then existing Term B Loans as determined by the Administrative Agent in accordance with standard market practices (after giving effect to interest rate margins, original issue discount, upfront fees or interest rate floors), then the all-in-yield with respect to the outstanding Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Term B Loans is equal to 50 basis points and (yviii) ~~all other~~ to the extent that (subject to clauses (iv) through (vii) above) the terms of any Incremental Term ~~Facility, if~~ Facility are not consistent with the terms of the ~~Tranche~~ Term B ~~Term Facility in any material respect~~Facility, they shall be reasonably satisfactory to the Administrative ~~Agent~~ Agent. 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. (~~except for covenants~~ b) Any additional bank, financial institution or other entity which, with the consent of the Borrower 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 which consent 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 outstandingsunreasonably withheld), ~~(2) repayments required upon the maturity date of the Incremental Revolving Commitments and (3) repayment made~~ elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a ~~permanent repayment~~ New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and ~~termination of commitments (subject~~ to ~~clause (D) below)) of Loans with respect to Incremental Revolving Commitments~~ the same extent as if originally a party hereto and shall be ~~made on a pro rata basis with all other Revolving Commitments on~~ bound by and entitled to the ~~Incremental Facility Closing Date; and (D) the permanent repayment~~ benefits 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 Classthis Agreement. (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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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[Reserved]. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ Term Loan Activation Notice may, without the consent of any ~~Lender,~~ Lender (other than the applicable Incremental Term 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 give effect to the provisions of this ~~Section, including, without limitation,~~ Section 2.24. This Section shall supersede any ~~amendments and/or supplements~~ provision of Section 10.1 to the ~~documents delivered to satisfy the Collateral and Guarantee Requirement~~ contrary. (~~including, without limitation, amendments~~ e) It shall be a condition precedent to the ~~Mortgages~~ availability of any Incremental Term Loans that (i) no Default or Event of Default (or, in the case of any Incremental Acquisition Term Facility, no Event of Default under clauses (a) or (f) of Section 8) shall have occurred and ~~datedown endorsements~~ be continuing immediately prior to and immediately after giving effect to the ~~title policies) 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~~ making of such ~~new tranches or sub-tranches, including any amendments that are not adverse to the interests 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~~ (ii) the ~~ratable amortization received by~~ representations and warranties set forth in each ~~Lender thereunder.~~ Loan Document (~~f) Upon~~ or, in the ~~effectiveness of an Incremental Commitment~~ case of any Incremental ~~Lender~~Acquisition Term Facility, the Specified Representations and the Specified Acquisition Agreement Representations) shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Incremental Term Loan Closing Date immediately prior to and immediately after giving effect to the making of such Incremental ~~Lender~~ Term Loans, except to the extent expressly made as of an earlier date, in which case they shall be ~~deemed to be a “Lender”~~ so true and 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 ~~a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth~~ other documents as 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 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 reasonably requested by the Administrative Agent of in connection with any ~~notice from the Borrower referred to in Section 2.21(a) (Incrementa~~Incremental Term Facility.

Appears in 1 contract

Sources: Term Loan Credit Agreement (TTM Technologies Inc)

Incremental Facilities. (a) The Borrower ~~may on one or more occasions after the Closing Date~~may, from time to time, by ~~written~~ notice to the Administrative Agent, ~~request: (i)~~ request an increase in ~~any~~ the Revolving ~~Commitments~~ Credit Facility (~~each, a “Revolving Commitment Increase” and the commitments in respect thereof,~~ each such facility increase being an “Incremental ~~Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase~~Facility”), or pursuant to additional commitments (iii) the addition of one or more 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~~ ), in an aggregate principal amount for all such Incremental Facilities not to ~~such commitments, “~~exceed $50,000,000 for all Incremental ~~Term Loans”; and the Incremental Term~~ Facilities, ~~together with~~ each of which is to be effective as of a date that is at least 180 days prior to the Termination Date then in effect in respect of the Revolving ~~Commitment Increases and the Term Loan Increases~~Credit Facility (such date for each such Incremental Facility, the “~~Incremental Facilities~~Increase Date”), as specified in the related notice to the Administrative Agent; ~~provided~~ provided, however, that ~~the aggregate~~ (i) in no event shall any Incremental Facility be in a principal amount of ~~all~~ less than $10,000,000 (or such lesser amount as shall be approved by the Administrative Agent); (ii) the total Incremental Commitments at any time shall not exceed 50% of the ~~Permitted Incremental Amount applicable to the Incremental Commitments at such time less the aggregate~~ amount of ~~Incremental Equivalent Indebtedness incurred pursuant to clause~~ payments of principal made on the Term B Advances (wincluding without limitation any prepayment of principal made on the Term B Advances with Net Cash Proceeds of an asset sale permitted under Section 5.02(e)(xii)) from and including the date of the ~~definition of “Permitted Debt”. Each such notice shall specify~~ Second Amendment until (iand including) the ~~date on which the Borrower proposes that the Incremental Commitments~~ Increase Date; (iii) there shall be ~~effective, which shall be a date not less~~ no more than ~~ten~~ four (104) ~~Business Days~~ Incremental Facilities (or such ~~shorter period~~ greater number as ~~may~~ shall be ~~agreed to~~ approved by the Administrative Agent); (iv) ~~after~~ on the ~~date on which such notice is delivered to~~ Increase Date, the ~~Administrative Agent~~ applicable conditions set forth in Sections 3.02(a)(i)(y) and 3.02(a)(ii), and in clause (iid) of this Section 2.17, shall be satisfied or waived by the ~~amount~~ Applicable Incremental Lenders holding a majority-in-interest of the Incremental Commitments ~~being requested~~ under the applicable Incremental Facility; (~~it being agreed that (x~~v) as of the last day of the fiscal quarter of the Borrower immediately preceding the Increase Date, after giving pro forma effect to any ~~Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide~~ such Incremental ~~Commitment (~~Facility and any borrowing made thereunder and other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions or repayment of Debt after the beginning of such ~~Lender that fails~~ fiscal quarter but prior to ~~respond~~ or substantially contemporaneously with any borrowing under the Revolving Credit Facility related to ~~such approach~~ the Incremental Facility becoming effective, the Borrower shall be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be in pro forma compliance with all financial covenants set forth in ~~an Incremental Facility Agreement~~Section 5.04; ~~provided that~~(vi) on the Increase Date, ~~in any event, (i) if the Weighted Average Yield applicable~~ after giving pro forma effect to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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~~ Facility, no Default or Event of Default shall have occurred and be continuing; (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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in vii) 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule rates applicable to any Incremental Facility shall be determined by the Borrower and the Applicable Incremental Lenders; provided that if the Applicable Margin (or pricing grid thereunder) relating to any Incremental Facility exceeds the Applicable Margin (or pricing grid thereunder) then applicable to the Revolving Credit Advances (as previously adjusted, whether pursuant to this clause or otherwise), the Applicable Margin and/or pricing grid thereunder relating to the Revolving Credit Advances and prior Incremental Facilities shall be adjusted to be equal to the Applicable Margin and pricing grid thereunder relating to such Incremental Facility; (viii) each Incremental Facility, after such Incremental Facility becomes effective, and after completion of payments, reimbursements, advances, repayments, and other actions, if any, to be made or taken under, Section 2.17(d) (including, without limitation, the Initial Incremental Advance, if any, for such Incremental Facility), shall become part of the Revolving Credit Facility, the Applicable Incremental Lenders thereunder shall become and be Revolving Credit Lenders, commitments thereunder shall be Revolving Credit Commitments, advances thereunder (yincluding without limitation the Initial Incremental Advance) shall be Revolving Credit Advances (including for purposes of Section 2.06), and the Revolving Credit Facility and all ~~other terms of any~~ Incremental ~~Term~~ Facilities shall be treated as a single Revolving Credit Facility, ~~if not consistent~~ with any advances thereafter made under or payments received in respect of the Revolving Credit Facility and Incremental Facilities to be made and received based on the treatment of all lenders under all Incremental Facilities as Revolving Credit Lenders, and with terms of the ~~Tranche B Term~~ Loan Documents relating to the Revolving Credit Facility ~~in any material respect,~~ to be applied based on the treatment of the Incremental Facilities as part of the Revolving Credit Facility (and each Base Rate Advance and Eurodollar Rate Advance (including the applicable Initial Incremental Advance) then outstanding shall be ~~reasonably satisfactory~~ deemed to be reallocated as among the Revolving Credit Lenders (including the Applicable Incremental Lenders) so that each Revolving Credit Lender (including each Applicable Incremental Lender) shall hold a pro rata fraction of each Base Rate Advance and Eurodollar Rate Advance (including the applicable Initial Incremental Advance) then outstanding); (ix) the existing Revolving Credit Lenders shall initially have the right, but not the obligation, to commit to up to their Pro Rata Share (or, if consented to by the Borrower and the Administrative Agent ~~(except for covenants and terms that apply solely~~ to ~~any period after the latest Maturity Date that is in effect~~ cover declines by other Lenders, more than their Pro Rata Share) of each Incremental Facility ratably based 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 applicable Revolving Credit Commitments of the Revolving Credit Lenders ~~to the extent that~~ (with 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 Pro Rata Shares calculated 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 determined 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested time selected by the Administrative Agent in connection with ~~any~~ the syndication or arrangement of the applicable Incremental Facility, prior to the implementation of such ~~transaction.~~ Incremental Facility, and with such right to commit Pro Rata Shares to be subject to limitations and modifications for purposes of convenience, rounding, and minimum commitment amounts, by agreement of the Borrower and Administrative Agent); and (dx) ~~Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in~~ notwithstanding any other provision of any Loan ~~Document~~Document (including, without limitation, Section 9.01), the Loan Documents may be amended by the Administrative Agent and the Borrower, if ~~the proceeds of any~~ necessary, to provide for terms applicable to each Incremental Facility ~~are intended to be applied to finance~~ consistent with the terms hereof. (b) The Administrative Agent shall promptly notify the Lenders of a ~~Limited Condition Acquisition, to the extent agreed~~ request by the ~~applicable Lenders providing such~~ Borrower for an Incremental ~~Commitments~~Facility, ~~the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition~~ which notice shall ~~be limited to the following:~~ include (i) ~~(x) on~~ the ~~date~~ proposed amount of ~~execution of the definitive documentation with respect to~~ such ~~Limited Condition Acquisition~~requested Incremental Facility, ~~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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis proposed Increase Date and (iii) the ~~Borrower shall have delivered or caused~~ date by which the Revolving Credit Lenders wishing to ~~have been delivered~~ participate in the Incremental Facility must commit to an increase in the amount of their respective Revolving Credit Commitments (the “Commitment Date”). Each Revolving Credit Lender that is willing to participate in the requested Incremental Facility (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Administrative Agent ~~such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested~~ on or prior to the Commitment Date of the amount by which it is willing to increase its applicable Revolving Credit Commitment. If the Increasing Lenders notify the Administrative Agent that they are willing to participate in an Incremental Facility by an aggregate amount that exceeds the amount of the requested Incremental Facility, the requested Incremental Facility shall be allocated among the Increasing Lenders in such amounts as are agreed between the Borrower and the Administrative Agent. (c) Promptly following the applicable Commitment Date, the Administrative Agent shall notify the Borrower as to the amount, if any, by which the Increasing Lenders are willing to participate in the requested Incremental Facility. If the aggregate amount by which the Increasing Lenders are willing to participate in the requested Incremental Facility on any such Commitment Date is less than the requested Incremental Facility, then the Borrower may extend offers to one or more Other Incremental Lenders to participate in any portion of the requested Incremental Facility that has not been committed to by the Increasing Lenders as of the Commitment Date. Notwithstanding anything to the contrary herein, if the aggregate amount by which the Increasing Lenders and/or the applicable Other Incremental Lenders are willing to participate in the requested Incremental Facility is less than the requested Incremental Facility, then, at the option of the Borrower, the Revolving Credit Facility shall be increased in accordance with Section 2.17(d) (and subject to the minimum amounts and other limitations set forth in Section 2.17(a)) by such aggregate amount by which the Increasing Lenders and/or the applicable Other Incremental Lenders are willing to participate in the requested Incremental Facility. (i) On the applicable Increase Date (effective after giving effect to the Initial Incremental Advance, if any), each Other Incremental Lender that accepts an offer to participate in a requested Incremental Facility in accordance with Section 2.17(c) (each, an “Assuming Lender”) shall become a Revolving Credit Lender party to this Agreement as of the applicable Increase Date (with the amount of Revolving Credit Commitment committed by such Assuming Lender in connection with ~~any~~ such ~~transaction.~~Incremental Facility) and the Revolving Credit Commitment of each Increasing Lender for such Incremental Facility shall be so increased by the additional amount committed by such Increasing Lender in connection with such Incremental Facility (or by the amount allocated to such Lender pursuant to the last sentence of Section 2.17(b)) as of such Increase Date; provided, however, that (eA) ~~Each~~ the Administrative Agent shall have received on or before the Increase Date the following, each dated such date: (I) certified copies of resolutions of the Board of Directors (or other analogous governing body) of the Borrower approving the applicable Incremental Facility ~~Agreement may~~and the corresponding modifications to this Agreement, ~~without~~ if any, and an opinion of counsel for the ~~consent~~ Borrower (which may be in-house counsel), addressing the due execution, authorization, delivery and enforceability of any documents evidencing such Incremental Facility and the absence of any violation of applicable law, constitutive documents or agreements with respect to material indebtedness for borrowed money in connection with such Incremental Facility, in a form reasonably satisfactory to the Administrative Agent; (II) an assumption agreement from each Assuming Lender, ~~effect~~ if any, in form and substance reasonably satisfactory to the Borrower and the Administrative Agent pursuant to which such ~~amendments to~~ Assuming Lender assumes its obligations under this Agreement and the other Loan Documents ~~as may be necessary or appropriate~~and confirms the amount of its Commitment, duly executed by such Assuming Lender, the Administrative Agent and the Borrower; (III) confirmation from each Increasing Lender of the increase in the ~~opinion~~ amount of its Commitment in a writing reasonably satisfactory to the Borrower and the Administrative Agent; and (IV) a Notice of Borrowing (provided, that the form set forth as Exhibit B to the Credit Agreement shall for such purpose be modified to reflect that the advance being requested is an Initial Incremental Advance pursuant to this clause), executed by the Borrower with respect to the Initial Incremental Advance for such Incremental Facility, and indicating the amount of the Initial Incremental Advance calculated pursuant to the definition thereof. (B) the Borrower, prior to the effectiveness of the applicable Incremental Facility, shall have paid and/or reimbursed, as applicable, to the Administrative Agent, to ~~give effect~~ any arranger of the applicable Incremental Facility, and/or to the ~~provisions~~ Applicable Incremental Lenders (whether by direct payment to the Applicable Incremental Lenders or by payment to the Administrative Agent for the account of the Applicable Incremental Lenders), such fees, payments, and reimbursements, if any, as may have been agreed by the Borrower, on the one hand, and the Administrative Agent, the applicable arranger, and/or the Applicable Incremental Lenders, on the other hand. (ii) On the applicable Increase Date, upon fulfillment of the conditions set forth in clause (i) of this ~~Section~~Section 2.17(d), ~~including, without limitation, any amendments and/or supplements to~~ the ~~documents delivered to satisfy~~ Administrative Agent shall notify the ~~Collateral and Guarantee Requirement~~ Lenders (including, without limitation, ~~amendments to the Mortgages and datedown endorsements to the title policies~~each Applicable Incremental Lender) and ~~such technical amendments as may be necessary~~ the Borrower, on or ~~appropriate in the reasonable opinion~~ before 11:00 A.M. (New York City time), by telecopier, of the ~~Administrative Agent and the Borrower in connection with the establishment~~ occurrence of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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~~to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date. (iii) On the applicable Increase Date, after fulfillment of the conditions set forth in clause (i) of this Section 2.17(d), and in conjunction with the notice given pursuant to clause (ii) of this Section 2.17(d), each ~~Lender holding an~~ of the Applicable Incremental Lenders shall fund its pro rata share (based on the Incremental Commitment of ~~any Series shall make a loan to the Borrower in an amount equal~~ each Applicable Incremental Lender with respect to such Incremental ~~Commitment on~~ Facility) of the ~~date specified in~~ Initial Incremental Advance for such Incremental ~~Facility Agreement~~Facility. 5. Section 5.02(e) is hereby amended by deleting the word “and” at the end of subsection (hx), adding the word “and” at the end of subsection (xi) ~~The Administrative Agent shall notify~~ and adding the ~~Lenders promptly upon receipt by~~ following subsection (xii) to the ~~Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) (Incrementa~~end thereof:

Appears in 1 contract

Sources: Credit Agreement (NCO Group, Inc.)

Incremental Facilities. (a) The Borrower ~~may on one or more occasions after the Closing Date~~may, by written notice to the Administrative ~~Agent~~Agent from time to time, ~~request: (i) an increase in any Revolving~~ request Incremental Loan Commitments ~~(each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii)~~ from one or more ~~new term loan commitments~~ Incremental Term Lenders or Incremental Revolving Lenders, as applicable, all of which must be Eligible Assignees (which Eligible Assignee may not be the ~~same Class as any outstanding~~ Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments, be an Affiliated Lender (~~each, a “Term Loan Increase”~~but only if Section 9.04(k) is complied with)), ~~or (iii)~~ so long as at the ~~addition~~ time such Incremental Loan Commitments become effective and, in the case of ~~one or more new tranches of term loans (each, an “~~Incremental Term ~~Facility”;~~ Loans, at the ~~commitments~~ time any Incremental Loans in respect thereof ~~“Incremental Term Commitments” and together with~~ are incurred (after giving effect on a pro forma basis to the ~~Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to~~ incurrence of such ~~commitments, “~~Incremental Term Loans”; , and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term ~~Facilities, together with~~ Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the ~~Revolving Commitment Increases~~ form of Loans and that the ~~Term Loan Increases~~proceeds thereof are not treated as Unrestricted Cash for such purpose), the ~~“Incremental Facilities”); provided that the~~ aggregate principal amount of ~~all the~~ such Incremental Loan Commitments ~~at any time shall~~ and (without duplication) Incremental Loans does not exceed the ~~Permitted~~ Maximum 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”~~Facilities Amount. ~~Each such~~ Such notice shall ~~specify~~ set forth (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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Loan Commitments being requested (~~it being agreed that~~ which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (xii) ~~any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide~~ the date (an “Increased Amount Date”) on which such Incremental ~~Commitment~~ Loan Commitments are requested to become effective (~~and any~~ which shall not be less than 10 Business Days nor more than 60 days after the date of such ~~Lender that fails to respond to~~ notice (or such ~~approach shall be deemed to have declined to provide such Incremental Commitment,~~ other number of days as the ~~case~~ Administrative Agent may bereasonably agree to)) and (yiii) ~~any Person that~~ whether such Incremental Term Loan Commitments are commitments to make additional Tranche A-1 Term Loans or Tranche A-2 Term Loans or commitments to make term loans with terms different from the ~~Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender~~ Tranche A-1 Term Loans or ~~an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent~~Tranche A-2 Term Loans (“Other Term Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any other bank, financial institution or other institutional lender or investor (each of which must be an Eligible Assignee) that agrees to provide any portion of Incremental Loan Commitments (each, an “Additional Incremental Lender”) (provided that (i) the Administrative Agent, the Swing Line Lender and each Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Incremental Lender’s making such Incremental Loan Commitments to the extent such consent, if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Incremental Lender, (ii) an Affiliated Lender may provide Incremental Term Loan Commitments or Incremental Term Loans only if Section 9.04(k) is complied with, but may not provide Incremental Revolving Loan Commitments or Incremental Revolving Loans and (iii) the Borrower and its Subsidiaries may not make Incremental Loan Commitments or Incremental Loans). The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The terms and ~~conditions~~ provisions of the Incremental ~~Commitments and the~~ Term Loans and/or Incremental Revolving Loans ~~to be made thereunder~~ shall be ~~set forth in an Incremental Facility Agreement; provided that, in any event, (i) if~~ identical to those of the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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 A-1 Term Loans, ~~then the Applicable Margin then in effect for~~ Tranche B A-2 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental and/or Revolving Loans, as applicable, ~~include~~ except, in the case of Other Term Loans, as certain terms and provisions thereof are otherwise permitted hereunder to deviate from those of the Tranche A-1 Term Loans and Tranche A-2 Term Loans as set forth in the applicable Incremental Term Loan Assumption Agreement; provided, that the terms and documentation in respect of such Incremental Term Loan Commitments to the extent not consistent with the terms of the existing Tranche A-1 Term Loans or Tranche A-2 Term Loans will apply only to periods after the Latest Maturity Date of any existing Term Loans as of the Increased Amount Date, or, if more favorable to the lenders providing such Incremental Term Loans than the corresponding terms are to Lenders holding existing Term Loans, may apply to the existing Term Loans. All Incremental Revolving Loan Commitments shall be documented solely as an increase to the Revolving Credit Commitments and all Incremental Revolving Loans shall be identical to all Revolving Loans, other than in respect of any arrangement, commitment or upfront fees payable to any Incremental Revolving Lenders or any arranger appointed in connection therewith. Notwithstanding the foregoing, (i) the final maturity date of any Other Term Loans shall be no earlier than the Tranche A-2 Term Loan Maturity Date, (ii) the weighted average life to maturity of the Other Term Loans shall be no shorter than the weighted average life to maturity of the Tranche A-2 Term Loans and (iii) if the all-in yield on such Other Term Loans (other than Other Term Loans incurred to finance a Permitted Acquisition) (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Reserve Adjusted Eurodollar Rate on such Other Term ~~SOFR~~ Loans and (y) if such Other Term Loans are initially made at a discount or ~~Alternate Base~~ the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the weighted average life to maturity of such Other Term Loans and (B) four; provided that, in the case of any Other Term Loans incurred under clause (a), (b), (c), (d) or (e) of the definition of Maximum Incremental Facilities Amount, in determining the margin above the Reserve Adjusted Eurodollar Rate, if the Reserve Adjusted Eurodollar Rate in respect of such Other Term Loans includes a floor ~~that is~~ greater than the ~~Term SOFR or Alternate Base~~ applicable floor in respect of the Reserve Adjusted Eurodollar Rate ~~floor~~ applicable to ~~any existing Class of~~ the Tranche A-2 Term Loans, such ~~differential between interest rate floors~~ excess amounts shall be ~~included in the calculation of Weighted Average Yield~~ equated to interest margin for purposes of ~~this clause (i), but only~~ determining Yield Differential to the extent an increase in the ~~Term SOFR or Alternate Base~~ interest rate floor in respect of the Reserve Adjusted Eurodollar Rate ~~floor~~ applicable to the ~~existing~~ Tranche A-2 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~~ interest rate floor (but not the ~~applicable rate~~Applicable Margin) applicable to ~~the existing~~ such Tranche A-2 Term Loans shall be increased) exceeds the all-in yield for Eurodollar Tranche A-2 Term Loans (as determined by the Administrative Agent in a manner consistent with the calculation of the all-in-yield on such Other Term Loans as set forth above) by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then (x) the Applicable Margin then in effect for Tranche A-2 Term Loans shall automatically be increased by the Yield Differential and (y) the Applicable Margin then in effect for the Tranche A-1 Term Loans shall automatically be increased by an amount equal to the ~~extent~~ amount of ~~such differential between interest rate floors;~~ any increase in the Applicable Margin for Tranche A-2 Term Loans pursuant to the foregoing clause (~~ii)~~ x), in each case effective upon the ~~weighted average life~~ making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to ~~maturity~~ the effectiveness of each Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loans shall be no 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 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 Loan Assumption Agreement 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~~ Revolving Loan Assumption Agreement, as applicable~~); (vii) the proceeds of any Incremental Facility~~ , this Agreement 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 deemed amended 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~~ but only to the ~~Revolving Commitments~~ extent) necessary to reflect the existence 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 terms of the Incremental ~~Revolving Commitments~~ Loan Commitment 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~~evidenced thereby, and ~~termination of, Incremental Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments, except that~~ the Administrative Agent and the Borrower ~~shall be permitted~~ may revise this Agreement to ~~permanently repay and terminate commitments of any~~ evidence such ~~Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class~~amendments. (c) ~~The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by~~ Notwithstanding the ~~Parent~~foregoing, ~~the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that~~ no Incremental ~~Commitments~~ Loan Commitment shall become effective under this Section 2.25 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~~such effectiveness, ~~both immediately prior to and immediately~~ (i) the Borrower is in Financial Covenant Compliance (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 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 Commitments on a pro forma basis to the incurrence of any such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), (ivii) the ~~Borrower~~ conditions set forth in Sections 4.01(b), 4.01(c) and, if applicable, 4.01(d) shall ~~have delivered or caused to have been delivered to~~ be satisfied and the Administrative Agent shall have received a certificate to that effect dated such ~~customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates~~ date and ~~other documents as shall reasonably be requested~~ executed by a Financial Officer of the ~~Administrative Agent in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document~~Borrower; provided that, if the proceeds of any Incremental ~~Facility~~ Term Loan Commitments are ~~intended to be applied~~ being used to finance a ~~Limited Condition~~ Permitted Acquisition, (x) the reference in Section 4.01(b) to the ~~extent agreed by~~ accuracy of the ~~applicable Lenders providing such Incremental Commitments, the conditions precedent~~ representations and warranties shall refer to the ~~Borrower’s right~~ accuracy of only the representations and warranties that would constitute Specified Representations and the representations and warranties in the relevant acquisition agreement the failure of which to ~~request such Incremental Commitments for a Limited Condition Acquisition~~ be true shall permit the buyer not to consummate the Permitted Acquisition, (y) Section 4.01(c) 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) there being no Default or Event of Default under ~~Section 7.01(b~~paragraph (b), (c), (g) or (h) ~~(Events~~ of ~~Default), shall have~~ Article VII having 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Loan Commitments and ~~the making of Incremental Loans and other extensions of credit thereunder to be made on~~ (z) the date of ~~effectiveness thereof~~determination for purposes of testing Financial Covenant Compliance under clause (i) above shall be deemed to be the date on which the definitive agreements for such Permitted Acquisition are entered into, (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, the ~~Borrower~~ Administrative Agent shall be have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02, (iv) the Administrative Agent and each applicable Lender (other than any Defaulting Lender) shall have received all fees and expenses owed under this Agreement (including 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 ~~Commitments on a pro forma basis and~~ Loan Commitments); (~~iii~~v) the Borrower shall have ~~delivered~~ satisfied all Mortgage Modification Requirements; and (vi) in the case of any Incremental Term Loans incurred under clause (e) of the definition of Maximum Incremental Facilities Amount, either (A) the Permitted Drop-Down Acquisition constituting the Southampton Acquisition has been, or ~~caused to have been delivered to~~ substantially concurrent with the incurrence of such Incremental Term Loans, shall be, consummated or (B) (1) the Administrative Agent shall have received the Escrow Agreement, duly executed by the parties thereto, and (2) the proceeds of such ~~customary legal opinions~~Incremental Term Loans shall be concurrently deposited into the Escrow Account until at least $75,000,000 (or such lesser amount equal to the entire amount of Incremental Term Loans incurred under clause (e) of the definition of Maximum Incremental Facilities Amount) from proceeds of (x) such Incremental Term Loans and/or (y) any sale of Equity Interests by, ~~board resolutions~~or capital contribution to, ~~secretary’s certificates~~the Borrower (which, ~~officer’s certificates and other documents as shall reasonably be requested by~~ in the case of any such sale of Equity Interests, are not Disqualified Stock or Specified Equity Contributions) occurring after the Closing Date are on deposit in the Escrow Account. (d) Each of the parties hereto hereby agrees that the Administrative Agent may, in ~~connection~~ consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Tranche A-1 Term Loans, Tranche A-2 Term Loans and/or Revolving Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such ~~transaction~~Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) or (ii), as applicable, required to be made after the making of such Incremental Term Loans shall be ratably increased to take into account the initial aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation. (e) ~~Each~~ On any Increased Amount Date on which Incremental ~~Facility Agreement may~~Revolving Loan Commitments are effected, ~~without~~ subject to the ~~consent~~ satisfaction of ~~any Lender~~the foregoing terms and conditions, ~~effect~~ (i) each of the existing Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof, such ~~amendments to this Agreement and the other Loan Documents as may be necessary or appropriate,~~ interests in the ~~opinion~~ outstanding Revolving Loans and participations in Letters of ~~the Administrative Agent~~Credit and Swing Line Loans outstanding on such Increased Amount Date that will result in, after giving effect to ~~give~~ all such assignments and purchases, such Revolving Loans and participations in Letters of Credit and Swing Line Loans being held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the ~~provisions~~ addition of ~~this Section, including, without limitation, any amendments and/or supplements~~ such Incremental Revolving Loan Commitments to the ~~documents delivered to satisfy~~ Revolving Credit Commitments, (ii) each Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the ~~Collateral~~ same terms as any existing Revolving Loan and ~~Guarantee Requirement~~ (~~including, without limitation, amendments~~ iii) each Incremental Revolving Lender shall become a Lender with respect to the ~~Mortgages~~ Revolving Credit Commitments 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderall matters relating thereto. (f) ~~Upon the effectiveness of an Incremental Commitment~~ The proceeds of any Incremental ~~Lender, such Incremental Lender~~ Loans shall be ~~deemed~~ used for the purposes specified in the introductory statement 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. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Enviva Partners, LP)

Incremental Facilities. (a) ~~The Borrower may on one~~ So long as no Event of Default under Section 8.1 (a) or ~~more occasions after the Closing Date~~(f) exists or would arise therefrom (provided that, ~~by written notice~~ to the ~~Administrative Agent~~extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, ~~request:~~ the requirement that there be no Event of Default under Section 8.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time, (i) an to increase ~~in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more~~ Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the ~~same Class as any outstanding Term Loan (each, a~~ “Term ~~Loan Increase~~Incremental Commitments”~~), or~~ ) and (~~iii~~ii) to increase the ~~addition~~ Existing Revolving Tranche of ~~one or more~~ Revolving Commitments by requesting new ~~tranches~~ Revolving Commitments be added to an Existing Revolving Tranche of ~~term loans~~ Revolving Commitments (~~each, an~~ the “Revolving Incremental ~~Term Facility”; the commitments in respect thereof “Incremental Term~~ Commitments” ~~and~~ and, together with the Term Incremental ~~Revolving~~ Commitments, the “Incremental Commitments”~~; the loans made pursuant to such commitments~~), ~~“Incremental Term Loans”; and the Incremental Term Facilities~~provided that, 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 (i) the aggregate amount of Incremental ~~Equivalent~~ Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) the greater of $1,800 million and 100.0% of EBITDA (for the Measurement Period applicable at the time of the incurrence of such Indebtedness) plus (B) the maximum aggregate principal amount (as of the date of incurrence of any such Indebtedness and after giving pro forma effect to the incurrence thereof and the application of the net proceeds therefrom (or as of the date of the initial borrowing of such Indebtedness after giving pro forma effect to the incurrence of the entire committed amount of such Indebtedness)) that can be incurred without exceeding (x) other than during a Collateral Suspension Period, a Senior Secured Indebtedness to EBITDA Ratio for the Borrower of 4.00 to 1.00 (it being understood that for purposes of determining compliance under this clause (i)(B)(x), except as provided in clause (z) of the last proviso of this Section 2.6(a)(i), any Indebtedness incurred ~~pursuant to~~ under this clause (wi)(B)(x) (whether or not secured), other than Revolving Credit Indebtedness, will be included in the amount of Senior Secured Indebtedness for purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio) or (y) during a Collateral Suspension Period, a Total Indebtedness to EBITDA Ratio for the Borrower of 3.00 to 1.00 (it being understood that for purposes of determining compliance under this clause (i)(B)(y), except as provided in clause (z) of the last proviso of this Section 2.6(a)(i), any Indebtedness incurred under this clause (i)(B)(y) (whether or not secured), other than Revolving Credit Indebtedness, will be included in the amount of Total Indebtedness for purposes of calculating the Total Indebtedness to EBITDA Ratio); (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided, further, that (x) the Borrower may elect to use capacity under clause (i)(B) above prior to using capacity under clause (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on clause (i)(A) above shall be automatically reclassified (including for purposes of clause (a)(26) or (b)(26), as applicable, of the definition of “Permitted ~~Debt~~Liens”) as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio or Total Indebtedness to EBITDA Ratio, as applicable, at such time, on a pro forma basis and (z) any amounts incurred under clause (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under clause (i)(B) above or under clause (a)(26) or (b)(26), as applicable, of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio or Total Indebtedness to EBITDA Ratio, as applicable, to determine availability at such time under clause (i)(B) or capacity under clause (a)(26) or (b)(26), as applicable, of the definition of “Permitted Liens”). Each ~~such notice shall specify (i) the date on which the Borrower proposes that the~~ Incremental ~~Commitments~~ Commitment made available pursuant to this Section 2.6 shall be ~~effective, which shall be~~ in a ~~date not less than ten (10) Business Days (~~minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such ~~shorter period~~ lower minimum amounts or multiples as ~~may be~~ agreed to by the Administrative Agent, in its reasonably discretion from time to time. (b) ~~after~~ Each request from the ~~date on which~~ Borrower pursuant to this Section 2.6 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 ~~notice~~ bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is ~~delivered to~~ not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (iiin the case of Revolving Incremental Commitments) the ~~amount of the Incremental Commitments being requested~~ Issuing Banks (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 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). It is understood and agreed that (xi) no Lender shall have any obligation whatsoever to agree to any increase in its Commitment and (ii) if any existing Lender ~~approached~~ does not accept an offer to provide ~~any~~ Incremental ~~Commitment may elect or decline~~Commitments within the time specified for acceptance of such offer, ~~in its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Warner Music Group Corp.)

Incremental Facilities. [Reserved] (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ request the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments~~ establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 Term Loan Commitments at established on any ~~time~~ date shall not exceed (i) (together with the ~~Permitted~~ amount of Alternative Incremental Debt established on such date in reliance on the Base Incremental Amount) an amount equal to the Base Incremental Amount ~~applicable~~ on such date and (ii) an additional amount subject to the Maximum Incremental ~~Commitments at~~ Amount as of such ~~time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~date. Each such notice shall specify (iA) the date on which the Borrower proposes that the Incremental Term Commitments shall be effective, which shall be a date not less than ~~ten (10)~~ 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~~ Agent, and (iiB) the amount of the Incremental Term Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Term 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 Borrower proposes to become an Incremental Term Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, no Incremental Term Commitments may be established during the Senior Period. (b) The terms and conditions of ~~the~~ any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the 2018 Term Loan Commitments and the Term B Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield applicable~~ interest rate margins with respect to any Incremental Term Loans ~~issued~~ shall be as agreed by the Borrower and the lenders in respect thereof; provided, that if the total yield (calculated, for both the Incremental Term Loans and the Term B Loans, to include upfront fees, any interest rate floors and any original issue discount (with original issue discount being equated to interest rate in a manner determined by the Administrative Agent based on an assumed four-year life to maturity) but to exclude any arrangement, underwriting or ~~prior to~~ similar fee paid by the ~~date that is twelve (12~~Borrower) ~~months after~~ in respect of any Incremental Term Loans exceeds the ~~Closing Date exceeds~~ total yield for the existing Term B Loans by more than 0.50~~% per annum~~ %, the ~~applicable Weighted Average Yield payable pursuant to~~ Applicable Rate for the ~~terms of this Agreement, as amended through~~ Term B Loans shall be increased so that the ~~date~~ total yield in respect of 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 Incremental Term Loans is no higher than the total yield for the existing Term B Loans plus 0.50% ~~per annum below~~ (provided that if 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans ~~or Incremental Revolving Loans, as applicable,~~ include ~~a Term SOFR or Alternate Base Rate~~ an interest rate floor ~~that is~~ greater than the ~~Term SOFR or Alternate Base Rate~~ interest rate floor applicable to ~~any existing Class of~~ the Term B Loans, such ~~differential between~~ increased amount shall be equated to the applicable interest rate ~~floors shall be included in the calculation of Weighted Average Yield~~ margin for purposes of ~~this clause (i)~~determining whether an increase to the Applicable Rate for the Term B Loans shall be required, ~~but only~~ to the extent an increase in the interest rate floor for the Term ~~SOFR or Alternate Base Rate floor applicable to the existing Term~~ B 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~~ interest rate floor (but not the ~~applicable rate~~Applicable Rate) applicable to the Term B Loans shall be increased by such amount), (ii) any Incremental Term Loan shall have terms, in the Borrower’s reasonable judgment, customary for a term loan under then-existing market convention, (iii) the amortization schedule with respect to any Incremental Term Loans shall be ~~increased to~~ as agreed by the ~~extent of such differential between interest rate floors; (ii)~~ Borrower 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 B~~ Latest Maturing Term Loans outstanding immediately prior to the establishment of such Incremental Term Loans (~~without giving effect~~ other than as necessary to ~~prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B~~ make any such Incremental Term Loans fungible with such Latest Maturing Term Loans); , (~~iii~~iv) no Incremental Term Maturity Date ~~of any~~ with respect to Incremental Term ~~Facility~~ Loans shall be earlier than the ~~initial Tranche B Term~~ Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans, (~~other than an earlier maturity date for customary bridge financings~~v) except as permitted by clause (i), ~~which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing~~ the ~~stated maturity of which~~ Incremental Term Loans shall be treated no ~~earlier~~ more favorably than the ~~initial Tranche~~ Term B 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 Term B Loans or covenants more restrictive than the covenants applicable to the Term B Loans in each case prior to the Latest Maturity ~~Date);~~ Date in effect immediately prior to the establishment of such Incremental Facility so long as this Agreement is amended to provide all of the Lenders with the benefits of such additional covenants, events of default or more restrictive covenants, (ivvi) ~~(x) subject~~ to ~~clauses (ii) and (iii) above,~~ the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ extent the ~~amortization schedule~~ terms applicable to any Incremental ~~Facility shall be determined by the Borrower and the Incremental Lenders and (y) all other terms of any Incremental~~ Term ~~Facility, if not consistent~~ Loans are inconsistent with the terms of applicable to the ~~Tranche~~ Term B ~~Term Facility~~ Loans (except, in ~~any material respect~~each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative ~~Agent~~ Agent, and (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); (vvii) any Incremental Term Loans ~~may participate~~ shall have the same Guarantees as, and shall rank pari passu with respect to the Liens 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~~ Collateral and ~~Incremental Loans shall, as elected by the Borrower, be equal or junior~~ in right of payment ~~with~~ with, the Term B Loans. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any ~~remaining portion of the Facilities and~~Incremental Term Loans made thereunder, 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,~~ designated as ~~applicable);~~ a separate series (~~vii~~each a “Series”) ~~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 Term Commitments and Incremental ~~Revolving~~ Term Loans for all purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be ~~identical to~~ more than six maturity dates in respect of the ~~Revolving Commitments and the Revolving Loans, other than as to their Maturity Date and as set forth in this Section 2.21~~ Credit Facilities (~~Incremental Facilities); provided that, notwithstanding anything to the contrary in this Section 2.21 (Incremental Facilities)~~ including any Extended Term Loans 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~~ Replacement 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 Term Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the ~~Parent, the~~ Borrower, each Incremental Term Lender providing such Incremental Term 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 Term 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 Term 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 of each Loan Party 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 (or in all respects if qualified by materiality) on and as of such ~~prior~~ date, (iii) ~~after giving effect~~ the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Term Commitments and the ~~making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof~~related transactions under this Section, 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 Commitments on a pro forma basis and (iv) the ~~Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Documentconditions, if any, set forth in the ~~proceeds of any~~ applicable Incremental Facility Agreement are ~~intended to be applied to finance~~ satisfied; provided further that no Incremental Term Loans in respect of a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Conditionality Acquisition shall ~~be limited to the following:~~ become effective unless (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 Default or 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~~ as of which shall be a condition to funding such Incremental Loans shall be the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and warranties set forth in Article III on the date of ~~such closing and funding~~ entry into the definitive acquisition documentation in respect of such Limited ~~Condition Acquisition, it being understood~~ Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) 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~~of the Limited Conditionality Acquisition Agreement, the ~~Borrower shall be in compliance with the Financial Covenants~~ representations and warranties of each Loan Party set forth in ~~Section 6.12~~ the Loan Documents shall be true and correct in all material respects (~~Financial Covenants~~or in all respects if qualified by materiality) ~~with respect to the Fiscal Quarter of the Borrower most recently ended~~ on and as of ~~the date of effectiveness of~~ such Incremental Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) date. 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) Upon the effectiveness of an Incremental Term Commitment of any Incremental Term Lender, such Incremental Term 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. 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 Commitments and Incremental Loans for all purposes of this Agreement. (ge) 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. (hf) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in ~~Section 2.21(a~~paragraph (a) ~~(Incrementa~~above and of the effectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof.

Appears in 1 contract

Sources: Credit Agreement (Horizon Global Corp)

Incremental Facilities. (a) The ~~Borrower~~ Company may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Availability Period, the establishment of Incremental Revolving Commitments ~~(each, a “Revolving Commitment Increase” and the commitments~~ in respect ~~thereof, “Incremental Revolving Commitments”),~~ of the Global Tranche Commitments and/or the US Tranche Commitments and/or (ii) ~~one or more new term loan commitments~~ the establishment of ~~the same Class as any outstanding~~ Incremental Term Loan ~~(each, a “Term Loan Increase”), or (iii) the addition of one or more 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 (iA) the date on which the ~~Borrower~~ 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative ~~Agent~~ Agent, and (iiB) 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 ~~(and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such~~ or Incremental ~~Commitment, as the case may be)~~ Term Loan Commitment and (y) any Person that the ~~Borrower~~ Company proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and~~ must be reasonably acceptable to the Administrative ~~Agent~~Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Banks and the Swingline 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 be, except as otherwise set forth herein or in an the applicable Incremental Facility Agreement, identical to those of the Tranche A Term Loan Commitments and the Tranche A Term Loans; provided ~~that, in any event,~~ that (i) if the ~~Weighted Average Yield applicable~~ interest rate margins with respect to any Incremental Term Loans ~~issued on or prior to~~ shall be as agreed by the ~~date that is twelve~~ Company and the lenders in respect thereof, (12ii) ~~months after~~ any Incremental Term Loan shall have terms, in the ~~Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement~~Company’s reasonable judgment, ~~as amended through the date~~ customary for a term loan of such ~~calculation~~type under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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~~ as agreed by the Company and the lenders in ~~the calculation of Weighted Average Yield for purposes of this clause (i)~~respect thereof, but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B A Terms Loans and Incremental Term Loans ~~(without giving effect to prior prepayments that would otherwise modify~~ with the longest remaining weighted average life to ~~maturity of the Tranche B Term Loans);~~ maturity, (~~iii~~iv) no Incremental Term Maturity Date ~~of any~~ with respect to Incremental Term ~~Facility~~ Loans shall be earlier than the ~~initial~~ Tranche B 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 ~~(other than an earlier maturity date for customary bridge financings, which, subject~~ in effect immediately prior to ~~customary conditions, would either be automatically converted into~~ the establishment of such Incremental Term Loans; provided further that any Incremental Term Loans may add additional covenants or ~~required~~ events of default not otherwise applicable to ~~be exchanged for permanent financing~~ the ~~stated maturity of which shall be no earlier~~ Tranche A Term Loans or covenants more restrictive than the ~~initial~~ covenants applicable to the Tranche B A Term Loans in each case prior to the Latest Maturity ~~Date~~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); , (ivvi) ~~(x) subject~~ to ~~clauses (ii) and (iii) above,~~ the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees and~~ extent the ~~amortization schedule~~ terms applicable to any Incremental ~~Facility shall be determined by the Borrower and the Incremental Lenders and (y) all other terms of any Incremental~~ Term ~~Facility, if not consistent~~ Loans are inconsistent with the terms of applicable to the Tranche B A Term ~~Facility~~ Loans (except, in ~~any material respect~~each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative ~~Agent~~ 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); (vvii) any Incremental Term Loans ~~may participate~~ shall have the same Guarantees as, shall rank pari passu with respect to the Liens 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~~ Collateral 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~~ Loans (except to ~~security with any remaining portion of~~ the ~~Facilities, pari passu, junior or unsecured and shall not be secured by any assets other than~~ extent that the ~~Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any~~ related Incremental Facility Agreement provides for such Incremental ~~Commitments or~~ Term Loans to be treated less favorably, in which case such Incremental Term 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 a customary intercreditor agreement in form and ~~the related transactions and payment of fees and expenses with respect thereto, to make Restricted Payments and to refinance existing Indebtedness~~ substance reasonably satisfactory 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 outstandingsAdministrative Agent), (~~2) repayments required upon~~ viii), in the ~~maturity date~~ case of ~~the~~ Incremental ~~Revolving Commitments and~~ Term Loans marketed as term “B” loans to institutional investors (~~3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (D) below~~“Incremental Term B Loans”)~~) of Loans~~ , any Incremental Term Loan Amendment with respect to Incremental ~~Revolving~~ 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 Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be ~~made on~~ designated as a ~~pro rata basis with~~ separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all ~~other~~ purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be more than five (5) maturity dates in respect of the Credit Facilities (including any Replacement Term Loans or Replacement 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 ClassFacilities). (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the ~~Parent, the Borrower~~Company, 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 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) ~~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 and issuance of Letters of Credit 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 of each Loan Party 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 (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) on and as of such ~~prior~~ date, (iii) 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~~thereof (and assuming, in 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds case of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Revolving 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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, that such Incremental Revolving Commitments are fully drawn), the ~~Borrower~~ Company shall be in pro forma compliance with the ~~Financial Covenants~~ 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 ~~6.12~~ 2.16 in connection with such Incremental Commitments and the related transactions under this Section, and (~~Financial Covenants~~v) ~~with~~ the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect ~~to the Fiscal Quarter~~ of ~~the Borrower most recently ended~~ a Limited Conditionality Acquisition shall become effective unless (1) as of the date of ~~effectiveness~~ 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 ~~Commitments~~ Term 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~~ 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 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 (~~iii~~5) as of the ~~Borrower shall have delivered or caused to have been delivered to~~ date of execution of the ~~Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested~~ related Limited Conditionality Acquisition Agreement by the ~~Administrative Agent~~ parties thereto, the Company shall be in ~~connection~~ pro forma compliance with ~~any such transaction. (e)~~ 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 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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. (fd) 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~~. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions~~, and (ii) in the case of any Incremental ~~Loans made thereunder~~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 ~~designated~~ increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as ~~a separate series (each a~~ set forth in the definition of the term “~~Series”)~~ Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental ~~Commitments~~ Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and ~~Incremental Loans for~~ the Applicable Percentage of all ~~purposes of this Agreement~~the Revolving Lenders, shall automatically be adjusted to give effect thereto. (ge) 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 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 of each applicable Class 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~~ Company in an amount equal to such Incremental Term Loan 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 2.21(a) (Incrementaspeci

Appears in 1 contract

Sources: Credit Agreement (Scotts Miracle-Gro Co)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request:~~ request (i) ~~an increase in any~~ during the Revolving ~~Commitments (each~~Availability Period, ~~a “Revolving Commitment Increase” and~~ the ~~commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments~~ establishment of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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, (ii) prior to the “Latest Maturity Date, the establishment of Incremental Term Commitments”; , and (iii) prior to the ~~loans~~ Latest Maturity Date, the incurrence of Incremental Equivalent Debt (together with Incremental Term Loans and Incremental Revolving Commitments and Incremental Revolving Loans made ~~pursuant to such commitments~~thereunder, “Incremental ~~Term Loans~~Extensions of Credit”; ), in an aggregate amount for all such Incremental Credit Extensions not in excess of the greater of (A) the Incremental 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 ~~Term Facilities~~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, ~~together with~~ prior to the ~~Revolving Commitment Increases~~ 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 ~~Term Loan Increases~~applicable incurrence test in clause (B) is satisfied on a Pro Forma Basis after giving effect to any Incremental Extension of Credit, ~~the “~~such Incremental ~~Facilities”~~Extension of Credit may be incurred under clause (B) regardless of whether there is capacity under clause (A)); provided that ~~the aggregate amount~~ for purposes 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~~ pro forma calculation, (x) for purposes of ~~Incremental Equivalent Indebtedness incurred pursuant to~~ clause (w) B), if the proceeds of the ~~definition~~ relevant Incremental Extension of “Credit will be applied to finance a Permitted ~~Debt”. Each such notice shall specify (i)~~ Acquisition or the irrevocable redemption or repayment of Indebtedness, compliance with the Secured Leverage Ratio on a Pro Forma Basis will, at the option of the Borrower, be determined as of the date on which the ~~Borrower proposes~~ binding agreement for such Permitted Acquisition is entered into or the date of irrevocable notice of redemption or repayment, as applicable, (y) the Revolving Commitments (including, if applicable, any Incremental Revolving Commitments that would become effective in connection with the requested Incremental ~~Commitments~~ Facility) and other Incremental Credit Extensions shall be ~~effective, which~~ assumed to be fully funded and (z) all such Incremental Equivalent Debt constitutes Consolidated Total Secured Debt. Each Class of Incremental Term Loans and Incremental Revolving Commitments and shall be ~~a date~~ in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than ~~ten (10) Business Days (or~~ $50,000,000; provided that such ~~shorter period as~~ amount may be ~~agreed to by~~ less than $50,000,000 if such amount represents all the ~~Administrative Agent) after~~ remaining availability under the ~~date on which such notice is delivered to the Administrative Agent and (ii) the~~ aggregate principal amount of ~~the~~ Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate Extensions of ~~a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent)~~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 (provided that in the event the proceeds of any Incremental Extensions of Credit are used to finance any Permitted Acquisition or other Investment permitted hereunder, such condition precedent set forth in this clause (i) may be waived or limited as agreed between the Borrower and the Lenders providing such Incremental Extension of Credit, without the consent of any other Lenders), (ii) the representations and 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 (or, 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 Incremental Extension of Credit 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 Extension of Credit and the application of the proceeds therefrom (and assuming that the full amount of such Incremental Extension of Credit shall have been funded on such date), 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 Test Period of the Borrower 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) (provided that in the event the proceeds of any Incremental 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 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 the date of irrevocable notice of redemption or repayment, as applicable, then in connection with the calculation of any 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 calculated on a Pro Forma Basis assuming such acquisition, repayment or redemption and any other pro forma events in connection therewith (including the incurrence of Indebtedness and such Incremental Extension of Credit) have been consummated, except 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 relevant Incremental Facility Amendment and generally consistent with those delivered on the Original Effective Date under Section 4.01 of the Existing Credit Agreement 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 and (iv) 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 an the applicable Incremental Facility ~~Agreement~~Amendment, except as otherwise set forth herein; provided ~~that, in any event,~~ that (i) if pricing (including the ~~Weighted Average Yield~~ 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 Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 Facility and 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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~~ determined by the ~~extent of such differential between interest rate floors;~~ Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity~~ Revolving Commitments and of ~~the Tranche B~~ any then-outstanding Classes of Term Loans); , and (iii) no Incremental Term Loan Maturity Date ~~of any Incremental Term Facility~~ shall be earlier than the ~~initial Tranche B Term~~ Latest Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing at the ~~stated maturity~~ time of ~~which shall be no earlier than~~ incurrence of such Incremental Term Facility. Notwithstanding the ~~initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) above~~foregoing, the ~~pricing, interest rate margins, discounts, premiums, rate floors, fees~~ terms and ~~the amortization schedule~~ conditions applicable to ~~any~~ an Incremental Facility ~~shall be determined by~~ may (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 ~~and (y) all other terms of any~~ providing such Incremental ~~Term Facility, if not consistent with the terms of the Tranche B Term~~ Facility ~~in any material respect, shall be reasonably satisfactory to the Administrative Agent (except for covenants and terms that apply solely to any period~~ which are applicable only during periods after the ~~latest~~ Latest Maturity Date that is in effect on the ~~effective~~ date of effectiveness of such Incremental Facility ~~Agreement) (it being understood that~~ Amendment or, in the case of additional covenants, are made to ~~the extent any financial maintenance covenant is added~~ 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 Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu 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 the relevant Incremental Extension of Credit. Any additional bank, financial institution, existing Lender or other Person that elects to extend commitments in respect of any Incremental ~~Term Loans or~~ Facility shall be reasonably satisfactory to the Borrower and, in the case of any Incremental ~~Term~~ Revolving Commitments, ~~no consent shall be required from~~ the Administrative Agent ~~or any of~~ and each Issuing 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 ~~Lenders to~~ other Loan Documents, which shall be executed by the ~~extent that such financial maintenance covenant is also added for~~ Borrower, each Incremental Lender party thereto and the ~~benefit~~ Administrative Agent (but will not require the consent of any ~~Tranche B Term Loans remaining outstanding after~~ other Lenders). No Lender shall be obligated to provide any Incremental Extension of Credit unless it so agrees. Commitments in respect of any Incremental Facility will become Commitments (or in the case of any Incremental Revolving Commitment to be provided by an existing Revolving Lender, an increase in such Lender’s Revolving Commitment) under this Agreement upon 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 Amendment. An 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 Amendment may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement ~~and the~~ or to any other Loan ~~Documents~~ Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to ~~give~~ effect the provisions of this Section (including to provide for voting provisions applicable to the Incremental Lenders comparable to the provisions of ~~this Section~~Section 9.02(b)). (e) On the date of effectiveness of any Incremental Revolving Commitments, ~~including~~each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, ~~without limitation~~and each such Incremental Revolving Lender shall purchase from each Revolving Lender, ~~any amendments and/or supplements~~ 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 ~~documents delivered~~ effectiveness of such Incremental Revolving Commitment. Any assignment pursuant to ~~satisfy~~ this paragraph (e) by an 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 ~~Collateral and Guarantee Requirement (including, without limitation, amendments~~ Borrower pursuant to the ~~Mortgages and datedown endorsements to~~ provisions of Section 2.15 if the ~~title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion~~ date of the ~~Administrative Agent and~~ effectiveness of the ~~Borrower in connection with~~ related Incremental Revolving Commitments occurs other than on the ~~establishment~~ last day of ~~such new tranches or sub-tranches, including any amendments that are not adverse to~~ the interests 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 thereunderInterest Period relating thereto. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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~~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 ~~Agreement~~Amendment. (hg) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section ~~2.21(a~~2.20(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments or Incremental Equivalent Debt, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.20(e).

Appears in 1 contract

Sources: Credit Agreement (Netscout Systems Inc)

Incremental Facilities. (a) The Borrower may ~~on one~~ at any time or ~~more occasions~~ from time to time after the Closing Date, by ~~written~~ notice to the Administrative ~~Agent~~Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii)~~ request one or more ~~new term loan commitments~~ increases in the amount of the ~~same~~ Revolving Commitments of a Class ~~as any outstanding Term Loan~~ (~~each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~each such increase, 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~~Increase”); provided that no Specified Event of Default shall exist at the ~~aggregate amount of all the~~ time that any such 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 Revolving Commitment Increase is made or effected (wand after giving effect thereto) 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 may be agreed to by~~ in the ~~Administrative Agent) after~~ case of a Limited Condition Acquisition at the ~~date on which such notice is delivered to~~ time the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and any such Lender that fails to respond definitive agreement relating 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 Borrower proposes to become an Incremental Lender, if such Person~~ Limited Condition Acquisition is ~~not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent~~entered into). (b) ~~The terms and conditions~~ Each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental ~~Commitments and~~ Revolving Commitment Increases shall not exceed $100,000,000. (c) [Reserved]. (d) Each notice from the ~~Incremental Loans~~ Borrower pursuant to ~~be made thereunder~~ this Section 12.01 shall be set forth ~~in an Incremental Facility Agreement; provided that, in any event, (i) if~~ the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, requested amount 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the proposed terms of the ~~Tranche B Term Facility in~~ relevant Incremental Revolving Commitment Increases. Incremental Revolving Commitment Increases may be provided by any 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) existing Lender (it being understood that no existing Lender will have any obligation to ~~the extent any financial maintenance covenant is added for the benefit~~ provide a portion 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 Revolving Commitment Increase 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have ~~delivered or caused~~ no obligation to have been delivered to the Administrative Agent such 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 offer any such ~~transaction. (d) Notwithstanding~~ existing Lender the ~~foregoing provisions of this Section 2.21 (Incremental Facilities) or~~ opportunity to participate in ~~any other~~ the provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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), (gcommitment increase) 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representationsby any Additional Lender; provided that the ~~Borrower will make all~~ Administrative Agent and the ~~representations and warranties set forth in Article III on the date of~~ Issuing Lender shall have consented (not to be unreasonably withheld) to 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~~ Lender’s or Additional Lender’s providing such Incremental Revolving Commitment Increases if such consent would be required under Section 11.06 for an assignment of Loans ~~on such closing date; (ii) after giving effect~~ or Revolving Commitments, as applicable, 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered Lender or caused to have been delivered to the Administrative Agent such 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 transactionAdditional Lender. (e) ~~Each~~ Revolving Commitments in respect of Incremental ~~Facility~~ Revolving Commitment Increases shall become Revolving Commitments or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed the Borrower, each Lender agreeing to provide such Revolving Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary or appropriate~~necessary, in 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 ~~Borrower in connection with~~ Borrower, to effect the ~~establishment~~ provisions of ~~such new tranches or sub-tranches, including~~ this Section. The effectiveness of any ~~amendments that are not adverse~~ Incremental Amendment shall be subject to the ~~interests~~ satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in such Incremental Amendment. The Borrower will use the proceeds of the Incremental Revolving Commitment Increases for 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 purpose not ~~reduce the ratable amortization received~~ prohibited by ~~each Lender thereunder~~this Agreement. (f) No Lender shall be obligated to provide any Incremental Revolving Commitment Increases unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Revolving Commitment Increases. Upon each increase in the Revolving Commitments pursuant to this Section, each Lender with a Revolving Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase 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 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 with a Revolving Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Lender’s Revolving Commitment. If, on the date of such increase, there are any Loans outstanding, such Loans shall on or prior to the effectiveness of ~~an Incremental Commitment of any Incremental Lender,~~ such Incremental ~~Lender~~ Revolving Commitment Increase be prepaid from the proceeds of additional Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be ~~deemed to be a “Lender” (~~accompanied by accrued interest on the Loans being prepaid and a any costs incurred by any Lender in ~~respect of Commitments~~ accordance with Section 4.12. The Administrative Agent and ~~Loans of~~ the ~~applicable Class) hereunder~~Lenders hereby agree that the minimum borrowing, pro rata borrowing and ~~henceforth~~ pro rata payment requirements contained elsewhere in this Agreement shall ~~be entitled~~ not apply 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 transactions effected 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 Commitments and Incremental Loans for all purposes of this Agreementthe immediately preceding sentence. (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[Reserved]. (h) ~~The Administrative Agent~~ This Section 12.01 shall ~~notify the Lenders promptly upon receipt by the Administrative Agent of~~ supersede any ~~notice from the Borrower referred to~~ provisions in Section ~~2.21(a) (Incrementa~~4.09 or 11.01 to the contrary.

Appears in 1 contract

Sources: Asset Based Revolving Credit Agreement (Roundy's, Inc.)

Incremental Facilities. (a) The Borrower ~~may on one or more occasions~~ may, from time to time after the Closing Date, ~~by written notice to~~ arrange an incremental Facility (such Person (who may be the Administrative ~~Agent~~Agent or any other Person appointed by the Borrower), ~~request: (i~~the “Incremental Arranger”) specifying the proposed amount thereof, request an increase in the Commitments under any ~~Revolving Commitments~~ Tranche (which shall be on the same terms as, and become part of, the Tranche proposed to be increased) (each, a “~~Revolving~~ Commitment Increase~~” and the commitments~~ ”) in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 aggregate amount not 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”)~~exceed $75,000,000; 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 request for an increase shall be ~~effective, which shall be~~ in a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the minimum amount of the ~~Incremental Commitments being requested (it being agreed that~~ lesser of (x) $5,000,000, and (y) the entire amount of any increase that may be requested under this Section 2.16‎2.16. (b) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any Commitment Increases. Any Lender approached to ~~provide~~ participate in any ~~Incremental~~ Commitment Increases may elect or decline, in its sole discretion, to ~~provide~~ participate in such increase. The Borrower may also invite additional Eligible Assignees reasonably satisfactory to the Incremental ~~Commitment~~ Arranger and with the consent of the Administrative Agent and each L/C Issuer (to the extent the consent of any of the foregoing would be required to assign Loans to such Eligible Assignee, which consent shall not be unreasonably withheld, delayed or conditioned) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.16‎2.16 and such execution shall not be required for 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans joinder agreement to be ~~made thereunder shall be set forth in an Incremental Facility Agreement~~effective; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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~~any Commitment Increase, ~~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~~ Borrower must provide to the Administrative Agent the documentation providing for such Commitment Increase. (c) If a Tranche ~~B Term Loans~~ is ~~0.50% per annum below~~ increased in accordance with this Section 2.16‎2.16, the ~~Weighted Average Yield with respect to~~ Incremental Arranger and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase among the applicable Lenders. The 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 Arranger shall promptly notify the ~~then-remaining Weighted Average Yield~~ applicable Lenders of the ~~Tranche B Term Loans); provided, that, if~~ final allocation of such increase and the Increase Effective Date. In connection with any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in ~~the Term SOFR or Alternate Base Rate floor applicable~~ a Tranche pursuant to ~~the existing Term Loans would cause an increase in the interest rate then in effect thereunder~~this Section 2.16‎2.16, 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees this Agreement and the ~~amortization schedule applicable to any Incremental Facility shall~~ other Loan Documents may be ~~determined~~ amended in writing (which may be executed and delivered by the Borrower and the Incremental ~~Lenders~~ Arranger (and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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 hereby authorize any such Incremental ~~Commitments or Incremental Loans that are pari passu with or junior~~ Arranger to execute and deliver any such documentation)) in order to effectuate the increases 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 Tranche and to ~~refinance existing Indebtedness~~ reflect any changes necessary or appropriate 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~~ give effect to ~~the Revolving Commitments and the Revolving Loans, other than as to their Maturity Date and~~ such increase in accordance with its terms as set forth ~~in this Section 2.21 (Incremental Facilities); provided that, notwithstanding anything~~ herein pursuant to the ~~contrary in this Section 2.21 (Incremental Facilities) or otherwise: (A) any~~ documentation relating to 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 ClassCommitment Increase. (cd) ~~The Incremental Commitments shall be effected~~ With respect to any Commitment Increase pursuant to ~~one or more Incremental Facility Agreements executed and delivered by the Parent~~this Section 2.16‎2.16, ~~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~~ would exist immediately after giving effect to such ~~Incremental Commitments and the making of Incremental Loans thereunder to be made on such date,~~ increase (~~ii)~~ except ~~as otherwise agreed by the Lenders providing the relevant Incremental Facility~~ in connection with any acquisition or similar Investment, where no Event of Default under Sections 8.01(a), (f) or (g) ‎8.01(a), ‎(f) or ‎(g) shall be the standard), in each case, other than when an election with respect to a Limited Condition ~~Acquisition~~ Transaction has been made, in which case Section 1.02(e)‎1.02(e) shall govern; (~~which shall be governed by clause (d~~ii) ~~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 in all material respects (A) or in ~~the case of the~~ all respects, if qualified by materiality); provided, that representations and warranties ~~qualified~~ that are expressly stated to be as ~~to materiality, in all respects and (B) otherwise,~~ of an earlier date shall be accurate in all material ~~respects, in each case, on and~~ respects as of such ~~date~~earlier date (or in all respects, ~~except in~~ if qualified by materiality); provided, further, that, to the ~~case~~ extent that the proceeds of ~~any~~ such ~~representation and warranty that expressly relates~~ Commitment Increase are being used to ~~a prior date~~finance an acquisition permitted hereunder or other similar investment, ~~in which case such representation and warranty~~ only customary “specified representations” shall be required to be true and correct in all material respects as of the date of such ~~prior date~~incurrence (or as of any earlier date referred to therein), (iii) ~~after giving effect~~ [reserved]; (iv) [reserved]; and (v) to ~~such~~ the extent reasonably requested by the Incremental ~~Commitments~~ Arranger 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~~ expressly set forth in the documentation relating to such Commitment Increase, the Incremental Arranger shall have received legal -109- opinions, resolutions, officers’ certificates, and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section ~~6.12~~ 4.01‎4.01 or delivered from time to time pursuant to Section 6.12‎6.12 (~~Financial Covenants~~other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion) with respect to the ~~Fiscal Quarter of~~ Borrower and each material Subsidiary Guarantor, in each case, organized in a jurisdiction for which such deliveries are reasonably necessary to preserve the ~~Borrower most recently ended as of the date of effectiveness of~~ Collateral in such ~~Incremental Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered~~ jurisdiction. Subject to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitmentsforegoing, the conditions precedent to each such increase shall be solely those agreed to by the Lenders providing such increase and the Borrower~~’s right to request such Incremental Commitments for a Limited Condition Acquisition~~ . The terms of any Commitment Increase shall be ~~limited~~ identical to the ~~following:~~ Facility. (ie) On the Increase Effective Date with respect to an increase to an existing Tranche, (x) ~~on the date of execution~~ each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the ~~definitive documentation with respect~~ increase to the Commitments (each, a “Commitment Increase Lender”), and each such ~~Limited Condition Acquisition~~Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in L/C Obligations will equal the Pro Rata Share of the aggregate Commitments of all ~~the requirements set forth in clause (c)(i) and (ii) above shall be satisfied~~ Lenders represented by such L▇▇▇▇▇’s Commitment and (y) ~~on the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Loans~~if, (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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and warranties set forth in Article III on the date of such ~~closing and funding~~ increase, there are any Loans outstanding, such Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Loans made hereunder (reflecting such ~~Limited Condition Acquisition~~increase in Commitments), ~~it being understood and agreed that only the representations and warranties set forth in clause (B)~~ which prepayment 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 accompanied by accrued interest 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 Commitments on a pro forma basis Loans being prepaid and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested any costs incurred 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 necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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~~ in accordance with an existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 ~~2.21(a) (Incrementa~~3.05

Appears in 1 contract

Sources: Credit Agreement (EngageSmart, Inc.)

Incremental Facilities. (a) ~~The~~ At any time following the completion of the syndication of each of the Facilities and indicated by the Joint Lead Arrangers to the Borrower, the Borrower may ~~on one or more occasions after the Closing Date,~~ by written notice to the Administrative ~~Agent, request: (i)~~ Agent elect to request an increase in to the existing Commitments of any ~~Revolving Commitments~~ Class of Loans (~~each~~each such increase, ~~a “Revolving Commitment Increase” and the commitments in respect thereof,~~ an “Incremental Revolving ~~Commitments~~Facility Commitment”~~), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each~~, an “Incremental Term ~~Facility~~Facility Commitment”~~; the commitments in respect thereof~~ , or generally, an “Incremental Commitment”, as applicable), in an aggregate principal amount, collectively, not to exceed U.S.$125 million and any Borrowing thereunder shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than U.S.$10.0 million and shall be in the form of Term ~~Commitments”~~ Loan A Loans, Term Loan B Loans or Revolving Facility Loans or a combination of Term Loan A Loans and ~~together with the Incremental~~ Revolving ~~Commitments~~Facility Loans (collectively, 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~~ Such notice shall specify ~~(i)~~ the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be ~~effective~~made available (and, in the case of Incremental Term Loan Commitments, the date the Incremental Term Loans shall be made available and whether such Term Loans shall be Term Loan A Loans or Term Loan B Loans), which shall be a date not less than ~~ten~~ five (105) Business Days ~~(or such shorter period as may be agreed to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks (iieach, an “Incremental Revolving Facility Lender”, an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) ~~the amount of~~ to whom the Incremental Commitments ~~being requested~~ have been (~~it being agreed~~ in accordance with the prior sentence) allocated and the amounts of such allocations; provided that ~~(x)~~ any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date; and in the case of Incremental ~~Commitment~~ Term Facility Commitments, such new Loans in respect thereof (~~and any~~ “Incremental Term Loans”) shall be made on such ~~Lender~~ Increased Amount Date, provided that ~~fails to respond~~ (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and ~~the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any~~ Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) the ~~weighted average life to maturity of any Incremental Term Loans~~ representations and warranties contained in Article III and the other Loan Documents shall be ~~no shorter than the remaining weighted average life to maturity~~ true and correct in all material respects on and as of the Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financingsIncreased Amount Date, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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~~ representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such ~~Incremental Facility Agreement);~~ earlier date; (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 (viiiiii) 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; ; (Biv) ~~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~~ evidenced by one or more ~~Incremental Facility Agreements~~ joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the ~~Parent, the Borrower~~register, 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 (of 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered reasonably satisfactory to the Administrative Agent ~~such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended subject to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~ Section 2.17(e); (~~c)(i~~v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or any Incremental Loans; (vii) shall be treated substantially the same as the existing Loans (in each case, including with respect to mandatory and voluntary prepayments); (viii) if the all-in yield (as reasonably determined by the Administrative Agent and the Borrower to be equal to the sum of (A) the margin above the Eurodollar Rate on such Incremental Term Loans, (B) if such Incremental Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so but excluding any arrangement fees not paid to the Lenders thereof generally (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “OID”), the amount of such OID (based on an assumed four year weighted average life)) and (iiC) ~~above shall be satisfied and~~ any minimum Alternate Base Rate or Adjusted Eurodollar Rate applicable to such Incremental Term Loans) (ythe “All-In Yield”) on for any Incremental Loan exceeds the ~~date of closing of such Limited Condition Acquisition and~~ then applicable All-In Yield for the ~~funding of the applicable Incremental~~ Term Loan A Loans, Term Loan B Loans or Revolving Facility Loans, as applicable, by more than 50 basis points (the excess of (A) ~~no Event of Default under Section 7.01(b~~such All-In Yield for the Incremental Loans over (B) the All-In Yield for the Term Loan A Loans, Term Loan B Loans or Revolving Facility Loans, as applicable, plus 50 basis points being the relevant “Margin Differential”), then each Applicable Margin for the Term Loan A Loans, Term Loan B Loans or Revolving Facility Loans, as applicable, for each adversely affected existing Facility shall automatically be increased by the Margin Differential effective upon the making of the Incremental Loan; and (cix) and except as otherwise provided in this clause (a), the terms and conditions applicable to Incremental Term Loans shall not be materially different from those of the Term Loan A Loans, Term Loan B Loans or Revolving Facility Loans, as applicable; provided that (gA) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Term Loan A Maturity Date, the Term Loan B Maturity Date or ~~(h) (Events of Default)~~the Revolving Facility Maturity Date, ~~shall have occurred and be continuing~~ as applicable, may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Term Loan A Maturity Date, the Term Loan B Maturity Date or the Revolving Facility Maturity Date, as applicable, and (B) the ~~only representations and warranties~~ Incremental Term Loans may be priced differently than the ~~accuracy~~ existing applicable Loans. Each of ~~which~~ the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be ~~a condition~~ deemed amended to ~~funding such Incremental Loans shall be~~ the ~~Specified Representations~~ extent (~~conformed as~~ but only to the extent) necessary to ~~apply to such Limited Condition Acquisition)~~ reflect the existence and terms of the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 evidenced thereby, 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent and the Borrower may revise this Agreement to evidence such 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, amendments without the consent of any Lender. (b) On any Increased Amount Date on which Incremental Revolving Facility Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Facility Lenders shall assign to each of the Incremental Revolving Facility Lenders, and each of the Incremental Revolving Facility Lenders shall purchase from each of the existing Revolving Facility Lenders, at the principal amount thereof, such interests in the outstanding Revolving Facility Loans and participations in Revolving Letters of Credit outstanding on such Increased Amount Date that will result in, after giving effect to all such ~~amendments~~ assignments and purchases, such Revolving Facility Loans and participations in Revolving Letters of Credit being held by existing Revolving Facility Lenders and Incremental Revolving Facility Lenders ratably in accordance with their Revolving Facility Commitments after giving effect to ~~this Agreement~~ the addition of such Incremental Revolving Facility Commitments to the Revolving Facility Commitments, (ii) each Incremental Revolving Facility Commitment shall be deemed for all purposes a Revolving Facility Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Facility Loan and have the ~~other~~ same terms as any existing Revolving Facility Loan ~~Documents as~~ and (iii) each Incremental Revolving Facility Lender shall become a Lender with respect to the Revolving Facility Commitments and all matters relating thereto. (c) In the event that any Incremental Commitment is in the form of a Revolving Facility Commitment, a portion of such Incremental Revolving Facility Commitment may be ~~necessary or appropriate~~made available for the issuance of Revolving Letters of Credit in an amount not exceeding the proportional amount of the Revolving L/C Sublimit to the aggregate amount of the Revolving Facility Commitments as of such date. (d) The Incremental Loans shall be used solely for working capital, capital expenditures and other lawful purposes (including the payment of transaction fees and expenses and, in the ~~opinion~~ case of an Incremental Revolving Facility Commitment, for the ~~Administrative Agent, to give effect to the provisions~~ issuance of ~~this Section, including, without limitation,~~ Revolving Letters of Credit). (e) All Incremental Loans made on 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 Increased Amount Date will be ~~necessary or appropriate~~ made in ~~the reasonable opinion of the Administrative Agent and the Borrower in connection~~ accordance with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderprocedures set forth in Section 2.03. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 of the Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Commitments and the Incremental Lenders. (g) As a condition precedent to the Borrower’s incurrence of additional Indebtedness pursuant to this Section 2.20, (i) the Borrower shall, and shall cause each Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, reaffirmations of the guarantees and the security interests and Liens granted by the Loan Parties under the Security Documents in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (ii) with respect to any ~~notice from~~ Mortgaged Property, the Borrower ~~referred~~ shall, and shall cause each Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, upon the reasonable request of the Administrative Agent and/or the Collateral Agent (x) mortgage modifications or new Mortgages with respect to any Mortgaged Property in ~~Section 2.21(a~~each case in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (y) ~~(Incrementa~~all other items reasonably requested by the Collateral Agent that are reasonably necessary to maintain the continuing perfection or priority of the Lien of the Mortgages as security for such Obligations.

Appears in 1 contract

Sources: Credit Agreement (SemGroup Corp)

Incremental Facilities. (a) ~~The Borrower~~ Dana may ~~on one~~ at any time or ~~more occasions~~ from time to time after the Closing Date, by ~~written~~ notice to the Administrative ~~Agent~~Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii)~~ request one or more ~~new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more new~~ tranches of term loans (~~each,~~ each an “Incremental Term Facility”; ) or one or more additional revolving facilities or an increase in the ~~commitments in respect thereof~~ amount of the Revolving Credit Facility (each such additional facility or increase being an “Incremental ~~Term Commitments” and~~ Revolving Facility”; 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~~ each an “Incremental Facility”), provided that (i) at the time and after the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing (or, in the event such Incremental Facility is incurred in connection with a Permitted Acquisition or Investment permitted hereunder, (1) no Default or Event of Default shall have occurred and be continuing at the time a commitment to consummate such Permitted Acquisition or Investment is signed and (2) no Default or Event of Default under Section 6.01(a) or (f) shall have occurred and be continuing at the time such Permitted Acquisition or Investment is consummated), and (ii) the aggregate principal amount of the Incremental Facilities shall not exceed (A) (I) the greater of $1,100,000,000 and 15.0% of Total Assets less (II) the aggregate principal amount of Incremental Facilities and Incremental Equivalent Debt incurred or issued in reliance on clause (A)(I) above, plus (B) an unlimited amount if, immediately after giving effect thereto (assuming on the effective date thereof (1) the funding in full of an Incremental Revolving Facility and (2) the proceeds from the funding of such Incremental Facility shall not be netted against the applicable amount of Consolidated Total Debt for purposes of the calculation of the First Lien Net Leverage Ratio or the Senior Secured Net Leverage Ratio, as applicable, set forth in this paragraph below), (I) in the case of an Incremental Advance secured by Liens that rank pari passu with the Liens securing the Revolving ~~Commitment Increases and the Term Loan Increases~~Credit Facility, the First Lien Net Leverage Ratio determined on a pro forma basis would not exceed 1.50:1.00 and (II) in the case of an Incremental Advance secured by Liens that rank junior to the Liens securing the Revolving Credit Facility, the Senior Secured Net Leverage Ratio determined on a pro forma basis would not exceed 2.50:1.00 (the sum of the amounts specified in this clause (ii) (less the aggregate principal amount of any Incremental Facility that has become effective on or prior to the date of determination) the “Available Incremental ~~Facilities~~Amount”); ~~provided that~~ it being acknowledged and agreed that, for the avoidance of doubt, the 2018 Term Loan B Facility (as defined in Amendment No. 2), the 2018 Term A Facility Upsize (as defined in Amendment No. 2), the 2018 Revolving Facility Upsize (as defined in Amendment No. 2), the Revolving Facility Upsize (as defined in Amendment No. 3) and the Revolving Facility Upsize (as defined in Amendment No. 5) are incurred or established, as applicable, under the incremental ratio prong set forth in clause (B)(I) above, plus (C) the aggregate amount of all voluntary prepayments of (1) Incremental Term Facility (or other term Debt secured by Liens on the ~~Incremental Commitments at~~ Collateral that rank pari passu with the Liens on the Collateral securing the Obligations hereunder), (2) any ~~time shall not exceed the Permitted Incremental Amount applicable~~ Refinancing Term Facility (to the ~~Incremental Commitments at such time less~~ extent previously applied to the ~~aggregate amount~~ prepayment of Incremental ~~Equivalent Indebtedness incurred~~ Term Facility hereunder), (3) all repurchases of any of the foregoing Debt in clauses (1) and (2) (in each case, in an amount equal to the cash amount expended) and (4) the Revolving Credit Facility or Refinancing Revolving Facility (or other revolving Debt secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Obligations hereunder) (and accompanied by a reduction of Revolving Credit Commitments pursuant to ~~clause~~ Section 2.20(a) in the case of a prepayment of Revolving Credit Facility or Refinancing Revolving Facility or a reduction in the revolving commitments in the case of a prepayment of such other revolving indebtedness) made prior to such time, in each case, except to the extent funded with the proceeds of long-term indebtedness (~~w) of the definition of “Permitted Debt”~~other than revolving indebtedness). Each ~~such notice shall specify (i) the date on which the Borrower proposes that the~~ Incremental ~~Commitments~~ Facility shall be ~~effective, which shall be a date~~ in an aggregate principal amount that is not less than ~~ten (10) Business Days (or such shorter period as may be agreed to~~ $50,000,000 unless approved by the Administrative ~~Agent) after the date on which~~ Agent (provided that such ~~notice is delivered to the Administrative Agent and (ii) the~~ amount ~~of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment~~ may ~~elect or decline, in its sole discretion, to provide such Incremental Commitment (and 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 Borrower proposes to become an Incremental Lender,~~ less than $50,000,000 if such ~~Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to~~ amount represents all remaining availability under the ~~Administrative Agent~~limit set forth in the preceding sentence). (b) (i) The maturity date of any Incremental Revolving Facility (the “Incremental Revolving Facility Maturity Date”) shall not be earlier than the commitment termination date of the Revolving Credit Facility nor have a weighted average life which is shorter than the then remaining weighted average life of the Revolving Credit Facility; provided, that this clause (b)(i) shall not apply to any Incremental Revolving Facility, together with any other Incremental Facilities, Refinancing Debt and Incremental Equivalent Debt, in an aggregate principal amount outstanding that is not in excess of the greater of $300,000,000500,000,000 and 4.08.25 % of Total Assets (the “Inside Maturity Basket”), (ii) the terms and conditions ~~of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield~~ applicable to any Incremental ~~Term Loans issued on or prior to the date that is twelve~~ Revolving Facility (~~12) months after the Closing Date exceeds by more~~ other 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~~maturity, 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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 which shall be ~~included in~~ governed by the ~~calculation of Weighted Average Yield for purposes of this~~ preceding clause (i), but only to the extent an increase in the Term SOFR or 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facilitybe, if not substantially consistent with the terms of the ~~Tranche B Term~~ existing Revolving Credit Facility ~~in any material respect~~(other than interest rate margins and commitment/facility fees), 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 be extent that ~~to the extent~~ any financial maintenance covenant is added for the benefit of any Incremental ~~Term Loans or any Incremental Term Commitments~~Revolving Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of ~~any Tranche B Term Loans remaining outstanding~~ the Revolving Credit Facility or (2) only applicable after the ~~effectiveness~~ latest maturity of the Revolving Credit Facility) and (iii) the Applicable Margin and commitment/facility fees relating to any Incremental Revolving Facility shall be as agreed by Dana and the Lenders providing such Incremental Revolving Facility. (c) (i) The maturity date of any Incremental Term Facility (the “Incremental Term Facility Maturity Date”) shall not be earlier than the then Latest Maturity Date and the weighted average life to maturity of any Incremental Term Facility shall be no shorter than the market terms for facilities of equivalent tenor and similar nature at the time of such incurrence for a term facility as determined in good faith by Dana and the Administrative Agent; provided, that this clause (c)(i) shall not apply to any Incremental Term Facility, together with any other Incremental Facilities, Refinancing Debt and Incremental Equivalent Debt, in an aggregate principal amount outstanding that is not in excess of the Inside Maturity Basket, (ii) any Incremental Term Facility will rank pari passu with the Revolving Credit Facility and, the 2025 New Term A Facility and the 2026 Delayed Draw New Term A Facility in right of payment and security or, at the option of Dana, junior in right of security with the Revolving Credit Facility and, the 2025 New Term A Facility, and the 2026 Delayed Draw New Term A Facility subject to the Intercreditor Agreement or intercreditor arrangements reasonably satisfactory to the Administrative Agent), (iii) subject to clause (i) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by Dana and the lenders thereunder, (iv) any fees payable in connection with any Incremental Facility ~~Agreement);~~ shall be determined by Dana and the arrangers and/or lenders providing such Incremental Facility, (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~~ Facility shall provide for mandatory ~~prepayments of~~ prepayment events which shall be no more favorable to 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 lenders under 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 Term Facility ~~shall be used~~ than market terms 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 prepayment events 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 similar term loan facilities 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)incurrence, ~~(2) repayments required upon the maturity date of the Incremental Revolving Commitments and (3) repayment made~~ as determined 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 good faith by ~~the Parent, the Borrower, each Incremental Lender providing such Incremental Commitments~~ Dana and the Administrative Agent, (vi) the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or a Adjusted Term SOFR, Eurocurrency Rate, Daily Simple SONIA or Base Rate floor but excluding any structuring, commitment and arranger fees or other similar fees) applicable to any Incremental Facility will be determined by Dana and the lenders providing such Incremental Facility; ~~provided that no Incremental Commitments shall become effective unless~~ and (ivii) except as otherwise ~~agreed by the Lenders providing the relevant Incremental Facility~~ required or permitted in ~~connection with any Limited Condition Acquisition~~ clauses (~~which shall be governed by clause~~ i) through (dvi) ~~below)~~above, 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 all 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 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 terms of such Incremental ~~Commitments on a pro forma basis and (iv)~~ Facility, if not substantially consistent with the ~~Borrower~~ terms of the existing Revolving Credit Facility, shall ~~have delivered or caused to have been delivered~~ be reasonably satisfactory to the Administrative Agent ~~such customary legal opinions~~other than (x) terms that are only applicable to periods after the Latest Maturity Date and (y) terms and conditions which do not apply to any then-existing Facility (it being understood that, ~~board resolutions~~to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, ~~secretary’s certificates, officer’s certificates and other documents as~~ no consent shall ~~reasonably~~ be ~~requested by~~ required from the Administrative Agent ~~in connection with~~ or any of the Lenders to the extent that such ~~transaction~~financial maintenance covenant is (1) also added for the benefit of the Revolving Credit Facility or (2) only applicable after the latest maturity of the Revolving Credit Facility). (d) ~~Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any~~ Each Incremental Facility ~~are intended~~ may be provided by any existing Lender or by any Eligible Assignee selected by Dana (any such other financial institution or fund being called an “Additional Lender”), provided that the Administrative Agent shall have consented (not to be ~~applied~~ unreasonably withheld) to ~~finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders~~ such Lender’s or Additional Lender’s providing such Incremental ~~Commitments~~Facility if such consent would be required under Section 9.07 for an assignment of Advances to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the ~~conditions precedent~~ other Loan Documents, executed by the Borrowers, each Lender agreeing to ~~the Borrower’s right to request~~ provide 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 AcquisitionCommitment, ~~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~~ if any, each Additional Lender, if any, and the ~~funding of the applicable~~ Administrative Agent. The 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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 Amendment may, without the consent of any ~~Lender~~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 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 Dana, to effect the ~~Borrower~~ provisions of this Section 2.18. The effectiveness of any Incremental Amendment shall be subject (except as specifically set forth in ~~connection with~~ this Section 2.18) to the ~~establishment~~ satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.02 (it being understood that (i) all references to the date of making of an extension of credit or similar language in such Section 3.02 shall be deemed to refer to the effective date of such ~~new tranches~~ Incremental Amendment, and (ii) in the case of an Incremental Facility being used to finance a Permitted Acquisition or ~~sub~~a permitted Investment hereunder, the representations and warranties may be limited to customary “SunGard” provisions and the Lenders and Additional Lenders providing the applicable Incremental Facility may waive the making of any representation or warranty). The Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph. (e) To the extent not already provided, the Administrative Agent shall provide notice to all of the Lenders of the proposed Incremental Amendment by not later than the same date established in the Incremental Amendment (if any) for applicable “know your customer” and anti-~~tranches~~money laundering rules and regulations, including ~~any amendments that are not adverse to~~ without limitation, the interests 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 thereunderPatriot Act. (f) ~~Upon~~ This Section 2.18 shall supersede any provisions in Section 9.01 to the ~~effectiveness of an Incremental Commitment~~ contrary. Notwithstanding any other provision of any ~~Incremental Lender~~Loan Document, ~~such Incremental Lender shall~~ the Loan Documents may 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. 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 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 amended by the Administrative Agent ~~of any notice from~~ and the ~~Borrower referred~~ Loan Parties, if necessary, to ~~in Section 2.21(a) (Incrementa~~provide for terms applicable to each Incremental Facilities.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (DANA Inc)

Incremental Facilities. (a) The Borrower ~~may on one or~~ may, at any time but in any event not more ~~occasions after~~ than once in any calendar year prior to the ~~Closing Date,~~ Revolving Credit Commitment Termination Date by ~~written~~ notice to the ~~Administrative~~ Agent, request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 request that the aggregate amount of ~~all~~ the Revolving Credit Commitments be increased (each such facility increase being an "Incremental ~~Commitments~~ 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 ~~any time shall not exceed the Permitted Incremental Amount applicable~~ least 60 days prior to the scheduled Revolving Credit Commitment Termination Date then in effect in the case of an Incremental ~~Commitments at~~ Revolving Credit Facility or the Stated Maturity Date then in effect in the case of an Incremental Term Facility (such ~~time less~~ 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 ~~Equivalent Indebtedness incurred pursuant~~ 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 ~~clause~~ provide for terms applicable to each Incremental Facility consistent with the terms hereof. (wb) The Agent shall promptly notify Lenders and, to the extent selected by the Agent in consultation with the Borrower, one or more Eligible Assignees (each an "Invited Lender") of a request by the ~~definition of “Permitted Debt”. Each such~~ Borrower for Incremental Facility, which notice shall ~~specify~~ include (i) the ~~date on which the Borrower proposes that the~~ proposed amount of such requested Incremental ~~Commitments shall be effective~~Facility, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the proposed Increase Date and (iii) the date by which Invited Lenders wishing to participate in the Incremental Facility must commit to an increase in the amount of their respective Commitments or to fund such Incremental Term Facility (the "Commitment Date"). Each Invited Lender that is willing to participate in such requested Incremental ~~Commitments being requested~~ Facility (~~it being agreed that (x~~each an "Increasing Lender") ~~any Lender approached to provide any Incremental Commitment may elect or decline~~shall, in its sole discretion, to provide such Incremental 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 Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable give written notice to the Administrative Agent). (b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event, (i) if the Weighted Average Yield applicable to any Incremental Term Loans issued Agent on or prior to the ~~date~~ Commitment Date of the amount by which it is willing to increase its applicable Commitment or participate in such Incremental Term Facility. If the Increasing Lenders notify the Agent that ~~is twelve~~ 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. (12c) ~~months after~~ 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 ~~Closing Date exceeds~~ Commitments of each Increasing Lender for such Incremental Facility shall be so increased by ~~more than 0.50% per annum~~ such amount (or by the ~~applicable Weighted Average Yield payable~~ amount allocated to such Lender pursuant to the ~~terms~~ last sentence of ~~this Agreement,~~ Section 2.18(b)) as ~~amended through the date~~ of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans)Increase Date; provided, ~~that~~however, if that the Agent shall have received on or before such Increase Date the following, each dated such date: (A) certified copies of resolutions of the Board of Directors of the Borrower or the Executive Committee of such Board approving the entering into the applicable Incremental Facility (and the amount to be borrowed hereunder after giving effect to any Incremental ~~Term Loans or Incremental Revolving Loans, as applicable, include a Term SOFR or Alternate Base Rate floor that is greater than~~ Facility) and (B) an opinion of counsel for the ~~Term SOFR or Alternate Base Rate floor applicable to any existing Class of Term Loans, such differential between interest rate floors shall~~ Borrower (which may be ~~included in the calculation of Weighted Average Yield for purposes of this clause (i~~in-house counsel), ~~but only to~~ in substantially the extent an increase in the Term SOFR or 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 form of ~~such differential between interest rate floors~~Exhibit D-2 hereto; (ii) an assumption agreement from each Assuming Lender, if any, in form and substance reasonably satisfactory to the ~~weighted average life to maturity of any Incremental Term Loans shall be no shorter than~~ Borrower and the ~~remaining weighted average life to maturity of~~ Agent (each an "Assumption Agreement"), duly executed by such Assuming Lender, the ~~Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify~~ Agent and the ~~weighted average life to maturity of the Tranche B Term Loans);~~Borrower; and (iii) ~~no Incremental Maturity Date~~ confirmation from each Increasing Lender of ~~any Incremental Term Facility shall be earlier than~~ the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity amount of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 its participation in such Incremental Facility ~~shall be determined by~~ in a writing reasonably satisfactory to the Borrower and the ~~Incremental Lenders and (y) all other terms of any Incremental Term Facility~~Agent. On each Increase Date, ~~if not consistent with the terms~~ upon fulfillment of the Tranche B Term Facility in any 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 conditions 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions preceding sentence of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments2.18(c), the ~~conditions precedent to~~ Agent shall notify the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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 necessary or appropriate, in 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 Lenders (including, without limitation, ~~amendments to the Mortgages and datedown endorsements to the title policies~~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 ~~technical amendments as may be necessary or appropriate~~ Increase Date and shall record in the ~~reasonable opinion of~~ Register the ~~Administrative Agent~~ relevant information with respect to each Increasing Lender and ~~the Borrower in connection with the establishment of~~ each Assuming Lender on such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderdate. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Credit Agreement (Tribune Co)

Incremental Facilities. ~~(a) The Borrower may on~~ On one or more occasions at any time after the ~~Closing~~ Effective Date, the Borrower may by written notice to the Administrative ~~Agent, request:~~ Agent elect to request (iA) an increase ~~in any~~ to the existing Revolving Commitments (~~each~~any such increase, a the “~~Revolving Commitment Increase” and the commitments in respect thereof, “Incremental~~ New Revolving Commitments”), ) and/or (iiB) the establishment of one or more new term loan commitments of (the ~~same Class as any outstanding~~ “New Term Loan ~~(each~~Commitments”, a “Term Loan Increase”), or (iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the ~~Incremental~~ New Revolving Commitments, the “Incremental Commitments”~~; the loans made pursuant~~ ), by up 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 an aggregate amount of not to exceed $400,000,000 for 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”Commitments. Each such notice shall specify ~~(i)~~ the date (each, an “Increased Amount Date”) on which the Borrower proposes that ~~the~~ 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 to by the Administrative Agent)~~ after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent ~~and (ii)~~ and/or its Affiliates shall use commercially reasonable efforts, with the ~~amount~~ assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental ~~Commitments being requested (it being agreed~~ Commitments; provided that (x) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $20,000,000, (y) any Lender approached to provide ~~any~~ all or a portion of the Incremental ~~Commitment~~ Commitments may elect or decline, in its sole discretion, to provide ~~such~~ an Incremental ~~Commitment (~~Commitment; provided that the Lenders will first be afforded the opportunity to provide the Incremental Commitments on a pro rata basis, and if any Lender so approached fails to respond, such Lender ~~that fails to respond to such approach~~ shall be deemed to have declined to provide such Incremental ~~Commitment~~Commitments, ~~as the case may be)~~ and (yz) any Lender or other Person that ~~the Borrower proposes to become an Incremental Lender, if such Person~~ is ~~not then a Lender, an Affiliate of a Lender or an Approved Fund must be~~ an Eligible Assignee (each, a “New Revolving Loan Lender” or “New Term Loan Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and ~~must~~ the Administrative Agent (such approval not to be unreasonably withheld or delayed), and, in the case of a New Revolving Commitment, the Issuing Bank and the Swingline Lender (each of which approvals shall not be unreasonably withheld), unless such New Revolving Loan Lender or New Term Loan Lender is an existing Lender. The terms and provisions of any New Revolving Commitments shall be identical to the existing 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 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 Borrower and the New Term Loan Lenders in respect of such New Term Loans elect lesser payments and (c) otherwise be identical to the existing Term Loans or reasonably acceptable to the Administrative Agent~~). (b)~~ . The ~~terms and conditions~~ effectiveness of ~~the~~ 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, in the case of a New Term Loan Commitment, the borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall exist and (ii) as of the last day of the most 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 set forth in Section 6.12; (y) the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) on the effective date of such Incremental Commitments except to the extent 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 (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) (on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form 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 Borrower to authorize such Incremental Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Incremental Commitments; and (ii) 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, 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. 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 ~~set forth in an Incremental Facility Agreement; provided that~~deemed, in 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 ~~event,~~ Increased Amount Date on which any New Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) ~~if the Weighted Average Yield applicable to any Incremental~~ each New Term ~~Loans issued on or prior~~ Loan Lender shall make a Loan to the ~~date that is twelve~~ Borrower (12a “New Term Loan”) ~~months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant~~ in an amount equal to ~~the terms of this Agreement~~its New Term Loan Commitment, ~~as amended through the date of such calculation, with respect to Tranche B~~ and (ii) each New Term ~~Loans, then the Applicable Margin then in effect for Tranche B Term Loans~~ Loan Lender shall ~~automatically be increased to~~ become a ~~level such that the Weighted Average Yield~~ Lender hereunder with respect to the ~~Tranche B~~ New Term Loan Commitment and the New Term Loans ~~is 0.50% per annum below~~ made pursuant thereto. The Administrative Agent shall notify 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 then-remaining Weighted Average Yield Lenders promptly upon receipt of the ~~Tranche B~~ Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Commitments and the New Revolving Loan Lenders or the New Term ~~Loans); provided, that, if any Incremental~~ Loan Commitments and the New Term ~~Loans or Incremental Revolving Loans~~Loan Lenders, as applicable, ~~include a Term SOFR or Alternate Base Rate floor that is greater than~~ and (z) in the ~~Term SOFR or Alternate Base Rate floor applicable~~ case of each notice to any ~~existing Class of Term~~ Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, ~~such differential between interest rate floors shall be included~~ in ~~the calculation of Weighted Average Yield for purposes of this clause (i), but only~~ each case subject to the ~~extent an increase in the Term SOFR or Alternate Base Rate floor applicable~~ assignments contemplated by this Section. The upfront fees payable to the ~~existing~~ New Revolving Loan Lenders and/or New 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 such differential between interest rate floors; (ii) 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 B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the 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 (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 Loan Lenders shall be determined by the Borrower and the ~~Incremental~~ applicable New Revolving Loan Lenders ~~and (y) all other terms of any Incremental~~ and/or New Term Facility, if not consistent with the terms of the Tranche B Term Facility in any 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) Loan Lenders. The Incremental Commitments shall be effected pursuant to one or more ~~Incremental Facility Agreements~~ Additional Credit Extension Amendments executed and delivered by the ~~Parent~~Borrower, the ~~Borrower~~New Revolving Loan Lender or New Term Loan Lender, ~~each Incremental Lender providing such Incremental Commitments~~ as applicable, 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 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 Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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~~ recorded in the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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) Register. Each ~~Incremental Facility Agreement~~ Additional Credit Extension Amendment may, without the consent of any ~~Lender~~other Lenders, effect such amendments to this Agreement and the other Loan Documents as are consistent with this Section 2.04 and may be necessary or appropriate, in 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 Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests 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 thereunderSection 2.04. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. 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 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 2.21(a) (Incrementa

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Gramercy Property Trust Inc.)

Incremental Facilities. (a) The Borrower ~~may~~ may, at any time other than during the Covenant Relief Period, on one or more occasions on or after the ~~Closing Date~~Funding Date pursuant to an Incremental Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such commitments, “Incremental Term Commitments” and any such new Class or increase, an “Incremental Term Facility” and any loan made pursuant to any Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the aggregate amount of the Revolving Commitments (an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; the commitments thereunder, the “Incremental Revolving Commitments” and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed the Incremental Available Amount; Redline Waldencast - Credit Agreement (as amended by ~~written notice to~~ the ~~Administrative Agent, request:~~Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM provided that, (i) no Incremental Facility may be in an ~~increase in any Revolving Commitments~~ amount that is less than $5,000,000 (~~each, a “Revolving Commitment Increase” and~~ or such lesser amount to which the ~~commitments in respect thereof, “Incremental Revolving Commitments”~~Administrative Agent may reasonably agree), (ii) ~~one or more new term loan commitments of~~ except as the ~~same Class as~~ Borrower and any ~~outstanding Term Loan (each~~Lender may separately agree, ~~a “Term Loan Increase”)~~no Lender shall be obligated to provide any Incremental Commitment, or (iii) the addition of one or more 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 may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached determination to provide any Incremental Commitment ~~may elect~~ shall be within the sole and absolute discretion of such Lender, (iii) no Incremental Facility or ~~decline~~Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its ~~sole discretion~~capacity, ~~to provide such~~ if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan, (~~and~~ iv) except as otherwise permitted herein the terms of 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 Borrower proposes to become an Incremental Lender~~Term Facility, if ~~such Person is~~ not ~~then a Lender~~substantially consistent with those applicable to any then-existing Term Loans, ~~an Affiliate of a Lender or an Approved Fund~~ must be ~~an Eligible Assignee and must be~~ (x) reasonably acceptable to the Administrative ~~Agent).~~ Agent or (by) ~~The terms and conditions of~~ only applicable to the ~~Incremental Commitments and~~ period after the ~~Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event~~Latest Maturity Date, (iv) if each Incremental Revolving Facility shall have the ~~Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more~~ same terms, other than ~~0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement~~upfront fees, as ~~amended through~~ the Revolving Facility, (vi) the final maturity date ~~of 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 then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, 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), but only to the extent an increase in the Term SOFR or 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 Incremental Term Loans shall be ~~increased to~~ no earlier than the ~~extent of such differential between interest rate floors;~~Maturity Date, (iivii) the ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of any Incremental Term ~~Loans~~ Facility shall be no shorter than the remaining ~~weighted average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~the Tranche B~~ any then-existing tranche of Term Loans (without giving effect to ~~prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans~~any prepayment thereof);, (iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (xviii) subject to clauses (iivi) and (~~iii~~vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility, (ix) subject to clause (v) above, the ~~pricing,~~ pricing (including interest rate ~~margins, discounts, premiums, rate floors, fees~~ and ~~the amortization schedule applicable to~~ fees) of any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental ~~Lenders and~~ Facility, (yx) ~~all other terms of any~~ (A) each Incremental Term ~~Facility, if not consistent~~ Facility or Incremental Revolving Facility shall rank (i) on a pari passu basis with ~~the terms of the Tranche B Term Facility in any material respect, shall be reasonably satisfactory~~ or on a junior basis 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 and Revolving 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 and (ii) on a pari passu basis with ~~any remaining portion~~ the Term Loans and Revolving Loans in right of ~~the Facilities and, with respect to~~ security ~~with any remaining portion of the Facilities, pari passu, junior~~ or shall be unsecured and ~~shall~~ (B) no Incremental Facility may be (x) guaranteed by any Person which is not be a Loan Party or (y) 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);Collateral, (~~vii~~xi) 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)Section 1.12, no Default or Event of Default shall ~~have occurred and be continuing on the date of effectiveness thereof, both~~ exist immediately prior to ~~and immediately~~ or after giving effect to such Incremental ~~Commitments~~ Facility, and ~~the making of Incremental Loans thereunder to be made on such date,~~ (iiB) 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 of the Loan Parties (or, if agreed to by the lenders thereof, customary “SunGard” representations and warranties) set forth in ~~Article III~~ this Agreement and in the other Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM Loan Documents shall be true and correct in all material respects (Aor if qualified by materiality or Material Adverse Effect, in all respects) ~~in the case~~ on and as of the date such Incremental Facility becomes effective with the same effect as though such representations and warranties ~~qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case,~~ had been made on and as of such date; provided that, ~~except in~~ to the ~~case of~~ extent that any ~~such~~ representation and warranty ~~that expressly relates~~ specifically refers to a ~~prior date~~given date or period, ~~in which case such representation and warranty~~ it shall be true and correct in all material respects as of such ~~prior date,~~ date or for such period; (~~iii~~xii) ~~after giving effect to such~~ any Incremental ~~Commitments and the making~~ Term Facility shall participate (A) in any voluntary prepayment of ~~Incremental~~ Term 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~~ as set forth in Section ~~6.12~~ 2.11(a) and (~~Financial Covenants~~B) ~~with respect~~ in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) and (c), in each case, to the ~~Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of~~ extent provided in such Incremental Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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.Sections, (dxiii) ~~Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if~~ the proceeds of any Incremental Facility ~~are intended to~~ may be ~~applied to finance a Limited Condition Acquisition~~used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: and (~~i) (x~~xiv) on the date of ~~execution~~ the Borrowing of any Incremental Term Loans that will be of the ~~definitive documentation with respect~~ same Class as any then-existing Class of Term Loans, and notwithstanding anything to ~~such Limited Condition Acquisition, all~~ the ~~requirements~~ contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (~~c)(i~~a)(xiv) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and ~~(ii) above shall be satisfied and (y)~~ which ends on the last day of such Interest Period. (b) Incremental Commitments may be provided by any existing Lender, or by any other eligible assignee (any such other lender being called an “Incremental Lender”); provided that, the Administrative Agent (and, in the case of any Incremental Revolving Facility, each Issuing Bank) shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.04 for an assignment of Loans to such Incremental Lender, mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment. (c) Each Lender or Incremental 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 Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of ~~closing~~ such Incremental Commitment, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement. (d) As conditions precedent to the effectiveness of ~~such Limited Condition Acquisition and~~ any Incremental Facility or the ~~funding~~ making of ~~the applicable~~ any Incremental Loans, (Ai) ~~no Event~~ upon its request, the Administrative Agent shall be entitled to receive customary written opinions of ~~Default under Section 7.01(b)~~counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (c)ii) the Administrative Agent shall be entitled to Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM receive, from each Incremental Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (giii) the Administrative Agent, on behalf of the Incremental Lenders, or ~~(h) (Events of Default)~~the Incremental Lenders, as applicable, shall have ~~occurred and be continuing and~~ received the amount of any fees payable to the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (Biv) subject to Section 2.20(h), the ~~only representations and warranties~~ Administrative Agent shall have received a Borrowing Request as if the ~~accuracy~~ relevant Incremental Loans were subject to Section 2.03 or another written request the form of which ~~shall be a condition~~ is reasonably acceptable to ~~funding such Incremental Loans shall be~~ the ~~Specified Representations~~ Administrative Agent (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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~~ requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and ~~warranties~~ (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Financial Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower and (B) to the extent applicable, certifying that the condition set forth in clause (Ba)(xi) ~~shall~~ above has been satisfied. (e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.20: (i) each Revolving Lender immediately prior to such increase will automatically and without further act be ~~conditions~~ deemed to ~~funding~~ have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such ~~Incremental Loans on~~ Revolving ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such ~~closing date; (ii)~~ that, after giving effect to ~~such~~ each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental ~~Commitments and the making~~ Revolving Facility Lender) participations hereunder in Letters of ~~Incremental Loans and other extensions of credit thereunder to~~ Credit shall be ~~made~~ held on a pro rata basis on the ~~date~~ basis of ~~effectiveness thereof~~their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); and (ii) the existing Revolving Lenders shall assign Revolving Loans to certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the ~~Borrower~~ Revolving Lenders providing the relevant Incremental Revolving Facility) shall be purchase such Revolving Loans, in ~~compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect~~ each case to the ~~Fiscal Quarter~~ extent necessary so that all of the ~~Borrower most recently ended as~~ Revolving Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); 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 (ii). (f) On the date of effectiveness of ~~such~~ any Incremental ~~Commitments on a pro forma basis and (iii)~~ Revolving Facility, the ~~Borrower~~ maximum amount of LC Exposure permitted hereunder shall ~~have delivered or caused to have been delivered to~~ increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent ~~such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates~~ and ~~other documents as shall reasonably be requested by~~ the relevant Issuing Bank. (g) The Lenders hereby irrevocably authorize the Administrative Agent ~~in connection with~~ to enter into any ~~such transaction. (e) Each~~ Incremental ~~Facility Agreement may, without the consent of~~ Amendment and/or any ~~Lender, effect such amendments~~ amendment to ~~this Agreement and the~~ any other Loan ~~Documents~~ Document as may be necessary in order to establish new Classes or ~~appropriate~~sub-Classes in respect of Loans or commitments pursuant to this Section 2.20, in 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 Borrower in connection with the establishment of such new ~~tranches~~ Classes or ~~sub-tranches~~sub- Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM Classes, ~~including any~~ in each case on terms consistent with this Section 2.20 and such other amendments ~~that~~ as are not adverse to the interests 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. (f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender described 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. 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 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 AgreementSection 9.02. (h) ~~The~~ Notwithstanding anything to the contrary in this Section 2.20 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Permitted Acquisition or other similar Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (i) This Section 2.20 shall supersede any provision in Section 9.02 to the contrary. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent ~~shall notify~~ and the ~~Lenders promptly upon receipt~~ Borrower to effect the provisions of or be consistent with this Section 2.20. Any such amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) but without the consent of any ~~notice from~~ other Lender (other than the ~~Borrower referred~~ Incremental Lenders providing such Incremental Facility), and furnished to ~~in Section 2.21(a) (Incrementa~~the other parties hereto.

Appears in 1 contract

Sources: Credit Agreement (Waldencast PLC)

Incremental Facilities. (a) The Borrower may on one or more ~~occasions after the Closing Date~~occasions, by written notice to the Administrative Agent, ~~request: (i) an increase in any Revolving Commitments (each, a “Revolving Commitment Increase” and~~ request the ~~commitments in respect thereof, “~~establishment of Incremental Revolving Commitments”), (ii) one or more new term loan commitments of the same Class as any outstanding Term Loan (each, a “Term Loan Increase”), or (iii) the addition of one or more 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 established hereunder on any ~~time~~ date shall not exceed the ~~Permitted~~ Incremental Amount ~~applicable to the Incremental Commitments at~~ as of such ~~time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”~~date. 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)~~ five 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~~ Agent, and (ii) the amount of the Incremental Commitments being requested (it being agreed that (xA) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental 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 (yB) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, ~~an Affiliate of a Lender or an Approved Fund~~ must be an Eligible Assignee and must be ~~reasonably acceptable to~~ approved by the Administrative ~~Agent~~Agent (such approval not to be unreasonably withheld, conditioned or delayed)). (b) The terms and conditions of ~~the~~ any Incremental ~~Commitments~~ Commitment and the Incremental Loans to be made thereunder shall be as set forth in an the applicable Incremental Facility Agreement; provided ~~that, in any event,~~ that (i) if no Incremental Maturity Date shall be earlier than the latest Maturity Date in effect on the date of incurrence of such Incremental Loans, (ii) the weighted average life to maturity of any Incremental Loans shall be no shorter than the longest remaining weighted average life to maturity of any other Class of Loans outstanding on the date of incurrence of such Incremental Loans (and, for purposes of determining the weighted average life to maturity of any such other Class of Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders, (iii) the Weighted Average Yield, determined as of the date of incurrence of such Incremental Loans, shall not be greater than the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date 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 the Tranche B Term Loans, ~~then~~ determined as of such date (giving effect to any amendments to the ~~Applicable Margin then in effect for~~ Weighted Average Yield on the Tranche B Term Loans ~~shall automatically be increased~~ that became effective subsequent to ~~a level~~ the Closing Date but prior to such ~~that~~ date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans is increased, or fees to Lenders then holding the Tranche B Term Loans are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans ~~is 0.50% per annum below~~ to equal the Weighted Average Yield with respect to such Incremental Loans ~~(other than a shorter~~ minus 0.50%, provided that any increase in the effective Weighted Average Yield ~~for customary bridge financings, which, subject~~ with respect 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 then-remaining Weighted Average Yield of the Tranche B Term ~~Loans); provided, that, if any Incremental Term~~ Loans due to the application of an Adjusted Eurodollar Rate or ~~Incremental Revolving Loans, as applicable, include a Term SOFR or Alternate~~ Base Rate floor ~~that is greater than~~ to any Incremental Loans shall be effected solely through an increase in the ~~Term SOFR~~ Adjusted Eurodollar Rate or ~~Alternate~~ Base Rate floor applicable to ~~any existing Class of~~ the Tranche B Term ~~Loans, such differential between interest rate floors shall be included in the calculation of Weighted Average Yield for purposes of this clause (i), but~~ Loans and only to the extent an increase in ~~the Term SOFR or Alternate Base Rate~~ such floor ~~applicable~~ with respect to the ~~existing~~ Tranche B Term Loans would cause an increase in the interest rate then in effect ~~thereunder~~with respect thereto, (iv) Incremental Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than pro rata) with the other Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to any other Loans, (v) any Incremental Commitments and any Loans thereunder shall rank pari passu in right of payment, and ~~in such case~~ shall be secured by the ~~Term SOFR or Alternate Base Rate floors (but not~~ Collateral on an equal and ratable basis, with the ~~applicable rate) applicable~~ other Commitments and Loans, and shall be extensions of credit to the ~~existing Term Loans shall be increased~~ Borrower that are Guaranteed only by the Credit Parties and (vi) except for the terms referred to above and subject to Section 2.23(c), to the extent ~~of such differential between interest rate floors; (ii)~~ the ~~weighted average life to maturity~~ terms of any Incremental ~~Term~~ Loans ~~shall be~~ (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no ~~shorter than the remaining weighted average life to maturity~~ call” terms and other restrictions thereon) and premiums) are not consistent with those of the Tranche B Term Loans ~~(without giving~~ as in effect ~~to prior prepayments that would otherwise modify~~ on the ~~weighted average life to maturity~~ date of ~~the Tranche B Term~~ incurrence of such Incremental Loans); (iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date); (iv) (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 other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect, such differences shall be reasonably ~~satisfactory~~ acceptable to the Administrative Agent (except for ~~covenants and~~ terms ~~that apply solely~~ benefitting the Incremental Lenders (A) where this Agreement is amended to ~~any period~~ include such beneficial terms for the benefit of all Lenders or (B) applicable only to periods 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 as 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 date of incurrence of such Incremental ~~Revolving Commitments;~~ Loans). In the event any Incremental Loans have the same terms as any existing Class of Loans then outstanding or any Extended/Modified Loans or Refinancing Loans then substantially concurrently established (C) in each case, disregarding any differences in original issue discount or upfront fees if not affecting the ~~borrowing and repayment (except~~ fungibility thereof for ~~(1) payments of interest and fees at different rates on Incremental Revolving Commitments (and related outstandings~~US federal income tax purposes), ~~(2) repayments required upon~~ such Incremental Loans may, at the ~~maturity date~~ election of the ~~Incremental Revolving Commitments~~ Borrower, be treated as a single Class with such outstanding Loans or such Extended/Modified Loans or Refinancing Loans, and ~~(3) repayment made~~ any scheduled Installments set forth in ~~connection with a permanent repayment and termination of commitments (subject to clause (D) below)) of Loans~~ Section 2.11 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~~ of Loans may be increased to ~~any other Class with a later maturity date than~~ reflect scheduled amortization of such ~~Class~~Incremental Loans. (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~~ Pro Forma Effect to such Incremental Commitments (and assuming that the ~~making~~ full amount of such Incremental Commitments shall have been funded as 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 and the ~~date~~ use of ~~effectiveness~~ proceeds thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom and the representations and warranties of each Credit Party set forth in ~~Article III and in~~ the ~~other Loan~~ Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all ~~respects~~ respects, and (B) otherwise, in all material respects, in each ~~case,~~ case on and as of such date, except in the case of any such representation and warranty that ~~expressly~~ specifically relates to ~~a prior~~ an earlier date, in which case such representation and warranty shall be so true and correct ~~in all material respects~~ on and as of such ~~prior~~ earlier date; provided that, in the case of Incremental Commitments established to finance, in whole or in part, a Limited Conditionality Transaction, the conditions set forth in this clause (i) may be tested in accordance with Section 1.5 to the extent agreed by the Borrower and the Incremental Lenders providing such Incremental Commitments, all as set forth in the applicable Incremental Facility Agreement, (~~iii~~ii) ~~after giving effect to such Incremental Commitments and~~ the ~~making of Incremental Loans and other extensions of credit thereunder to be made on~~ Administrative Agent shall have received a certificate, dated the date of effectiveness ~~thereof~~thereof and signed by an Authorized Officer of the Borrower, ~~the Borrower shall be in~~ confirming compliance with the ~~Financial Covenants~~ conditions set forth in ~~Section 6.12~~ clause (~~Financial Covenants~~i) ~~with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of~~ above and, if such Incremental Commitments or any portion thereof are being established in reliance on clause (b) of the definition of the term “Incremental Amount”, setting forth a ~~pro forma basis~~ reasonably detailed calculation of the Incremental Amount under such clause, and (iviii) the Borrower shall have delivered ~~or caused to have been delivered~~ to the Administrative Agent such ~~customary~~ legal opinions, board resolutions, secretary’s certificates, officer’s ~~certificates~~ certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection with any such transaction. (d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’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 apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such 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~~ Credit 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, 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 Borrower in connection with the establishment of such new tranches or sub-tranchesSection 2.23, including any amendments ~~that are not adverse to the interests of any Lender that are made to effectuate changes~~ necessary to treat the applicable Incremental Commitments and Incremental Loans as a new Class of Commitments and Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share” and “Requisite Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable ~~any Incremental~~ such new Class of Commitments and 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 thereunderextended under Section 2.24 or refinanced under Section 2.25). (fd) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other ~~Loan~~ Credit 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 Commitments and Incremental Loans for all purposes of this Agreement. (ge) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Incremental Lender holding an Incremental Commitment of any ~~Series~~ 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. (hf) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section ~~2.21(a~~2.23(a) ~~(Incrementa~~and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof.

Appears in 1 contract

Sources: Second Lien Credit and Guaranty Agreement (Fusion Connect, Inc.)

Appears in 1 contract

Sources: Credit Agreement

Common use of Incremental Facilities Clause in Contracts