Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 3 contracts

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

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions after the Closing Date, by written notice to the Administrative ~~Agent from time~~ 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 ~~time~~such commitments, ~~request~~ “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 ~~in an amount~~ at any time shall not exceed the Permitted Incremental Amount applicable to the Incremental Commitments at such ~~that, after giving effect thereto,~~ time less the aggregate amount of Incremental ~~Commitments established at or prior~~ Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”. Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ 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 (~~which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate 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 ~~any Additional Lender~~an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) It 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 ~~condition precedent~~ 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 ~~Commitment~~ 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 or and immediately after giving effect to such Incremental ~~Commitments~~Commitments and the making of Incremental Loans thereunder to be made on such date, (ii) except as otherwise agreed by the ~~Total Leverage Ratio, determined on a Pro Forma Basis~~ Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (~~assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans~~which shall be governed by clause (d) below), ~~shall not exceed 2.75:1.00~~on the date of effectiveness thereof, ~~(iii)~~ the representations and warranties set forth in Article III and in ~~each~~ the other Loan ~~Document~~ 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, (or 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 ~~all respects, if qualified as~~ compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect to ~~materiality) on and~~ the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments ~~become effective (or if such representation and warranty relates to another date, such other date)~~ on a pro forma basis and (iv) the ~~terms~~ 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 ~~Term~~ Loans ~~or Incremental Revolving Loans~~ and other extensions of credit thereunder ~~shall comply with Section 2.25(c). (c) Incremental Commitments~~ to be made on the date of effectiveness thereof, the Borrower shall be ~~established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of~~ in compliance with the ~~Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and~~ Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect to the ~~applicable Incremental Assumption Agreement; provided that (i)~~ Fiscal Quarter of the ~~final maturity~~ Borrower most recently ended as of the date of ~~any~~ effectiveness of such Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, Commitments on a pro forma basis and (iii) the ~~Incremental Term Loans will rank pari passu with (~~Borrower shall have delivered or ~~junior to) the Tranche B Term Loans in right of payment and with respect~~ caused to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have been delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing for~~ such ~~Incremental Commitments~~customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and ~~such~~ other ~~documentation~~ documents as ~~the Administrative Agent~~ shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably be requested by the Administrative Agent ~~or the other parties to~~ in connection with any such transaction. (e) Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this ~~Section 2.25~~Section, ~~including~~ including, without limitation, any amendments ~~necessary~~ and/or supplements to ~~establish~~ the ~~Incremental Term Loan Commitments~~ documents delivered to satisfy the Collateral and ~~Incremental Term Loans as a new Class or tranche of Term Loans~~ Guarantee Requirement (including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies) and such ~~other~~ technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new 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 ~~or tranche~~of Term Loans, in which shall include any amendments that do not reduce the ratable amortization received by each ~~case on terms consistent with this Section 2.25~~Lender thereunder. (ef) Upon ~~each increase in~~ the ~~Revolving Credit Commitments pursuant to this Section ‎2.25~~effectiveness of an Incremental Commitment of any Incremental Lender, ~~each Revolving Credit~~ such Incremental Lender ~~with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act~~ shall be deemed to ~~have assigned to each Incremental Revolving Credit~~ be a “Lender” (and a Lender in respect of ~~such increase~~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 Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, Commitment on the date ~~of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of~~ specified in such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages Facility Agreement. (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. h) The Administrative Agent ~~and~~ shall notify the Lenders ~~hereby agree that~~ promptly upon receipt by the ~~minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere~~ Administrative Agent of any notice from the Borrower referred to in ~~this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.~~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. ~~(a)~~ The Borrower ~~may~~may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent ~~from time~~ in the form attached hereto as Exhibit G or in such other form acceptable to ~~time, request Incremental Commitments in an amount such that, after giving effect thereto,~~ the ~~aggregate amount of Incremental Commitments established~~ Administrative Agent (a “Commitment Amount Increase Request”) at or least five (5) Business Days prior to the desired effective date of such ~~time does not exceed $100,000,000. Such notice shall set forth~~ increase (the “Commitment Amount Increase”) (i) an increase to the ~~amount of~~ then existing Revolving Credit Commitments (any such increase, the “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000),~~ Revolving Credit Commitments”) and/or (ii) the ~~date~~ establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments ~~are requested to become effective (which shall not~~ or Incremental Term Loan Commitments, as applicable, be ~~less than 10 Business Days nor more than 60 days after~~ allocated and the ~~date~~ amount of such ~~notice (or such longer or shorter period as the~~ allocations; provided that Administrative Agent ~~shall agree)), (iii) whether~~ may elect or decline to arrange such ~~Incremental Commitments are~~ Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and ~~(iv) in~~ any Lender approached to provide all or a portion of the ~~case of any request for~~ Incremental ~~Term Loan Commitments, whether such~~ Revolving Credit Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion) , to provide an Incremental Revolving Credit Commitment or ~~any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any~~ an Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Term Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Commitment. Any Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments~~ made on an Increased Amount Date shall be ~~established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined~~ designated a separate series identified by the ~~Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final~~ year of maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans (or month and ~~(v) to the extent the terms of the~~ year if there are multiple Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, maturing in the ~~reasonable opinion~~ same year) (each, a “Series”) of ~~the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and~~ Incremental Term Loans ~~as a new Class or tranche~~ for all purposes of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this ~~Section 2.25~~Agreement. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 3 contracts

Sources: Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc)

Incremental Facilities. ~~(a)~~ The Borrower ~~may,~~ Representative may by written notice to the Administrative Agent ~~from~~ at any time more than 90 days after the Closing Date elect to ~~time~~request (A) prior to the Revolving Commitment Termination Date, ~~request~~ an increase to the existing Revolving Commitments (any such increase, the “Incremental ~~Commitments in~~ Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount ~~such that, after giving effect thereto,~~ not in excess of $250,000,000 in the aggregate and not less than $25,000,000 individually (or such lesser amount of which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $250,000,000 and all such Incremental Revolving Commitments ~~established at or~~ and Incremental Term Loan Commitments obtained prior to such ~~time does not exceed~~ date), and integral multiples of $~~100,000,000~~10,000,000 in excess of that amount. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent ~~shall agree))~~and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, ~~(iii~~an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) ~~whether~~ to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments ~~are~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan Commitments in its sole discretion and ~~(iv) in~~ any Lender approached to provide all or a portion of the ~~case of any request for~~ Incremental ~~Term Loan Commitments, whether such~~ Revolving Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion) , to provide an Incremental Revolving Commitment or ~~any Additional Lender. (b) It~~ an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall ~~be a condition precedent to the effectiveness~~ become effective as of ~~any Incremental Commitment~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (3) the U.S. Borrower shall be in pro forma compliance 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 Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent in connection with any such transaction and (7) the applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan of the applicable Class and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which 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 Borrowers (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. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower Representative’s notice of each Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, as applicable and (z) in the case of each notice to any applicable Lender with Revolving Commitments, the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche B Term Loans of the same Class. The terms and provisions of the Incremental Revolving Loans shall be identical to the Revolving Loans of the same Class. In the case of any Incremental Term Loans, (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Tranche B Terms Loans, (ii) the ~~Total Leverage Ratio~~applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the final maturity of the Term Loans, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ (iii) the ~~representations~~ yield and ~~warranties set forth in Article III and in each~~ all other ~~Loan Document shall be true and correct in all material respects (or in all respects, if qualified as~~ terms applicable to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of ~~the Incremental Term Loans~~ each Series shall be determined by the Borrower Representative and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term ~~Lenders~~ Loans (after giving effect to all rate floors and ~~set forth in~~ all fees or original issue discount payable with respect to such Incremental Term Loans), as reasonably determined by the Administrative Agent, shall not be greater than the applicable ~~Incremental Assumption Agreement; provided that~~ interest rate (including the Applicable Margin and rate floor) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Tranche B Term Loans, plus 0.25% per annum unless (i) the ~~final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life~~ interest rate with respect to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans ~~in right of payment and with respect~~ is increased so as to ~~security and~~ cause the ~~borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield~~ then applicable interest rate under this Agreement on ~~such Incremental Term Loans exceeds the initial All-in Yield of~~ the Tranche B Term Loans by to be not more than ~~50 basis points~~ 0.25% less than the yield then applicable to the Incremental Term Loans (after giving effect to all rate floors and all fees or original issue discount payable with respect to such Incremental Term Loans) and (ii) the interest rate with respect to Tranche A Term Loans is increased by an amount equal to the amount of ~~such excess above 50 basis points being referred to herein as~~ any increase in the ~~“Yield Differential”), then the Applicable Margin~~ interest rate for ~~the~~ Tranche B Term Loans ~~shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v)~~ pursuant to ~~the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in~~ clause (i~~) through (iv) above~~)~~, such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving ~~Credit Commitment (and the Incremental Revolving~~ Loans ~~thereunder) shall~~ will be ~~implemented~~ documented solely as an increase to the ~~Total~~ Revolving ~~Credit~~ Commitments ~~and shall be on terms identical~~ of the same Class without any change in terms, other than any change that is more favorable to the ~~existing~~ Revolving ~~Credit Commitments (~~Lenders and ~~the~~ applies equally to all Revolving Loans ~~thereunder). (d) In connection with any Incremental Commitments,~~ and Revolving Commitments of the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lendersame Class. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any Lender other than the applicable Incremental Revolving Loan Lender or Incremental Term Loan Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent ~~and the Borrower,~~ to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.24. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 3 contracts

Sources: Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/), Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/), Credit and Guaranty Agreement (Phillips Van Heusen Corp /De/)

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments (it being agreed that the Borrower shall not be obligated to offer to any Lender the opportunity to participate in ~~an amount such~~ any Incremental Facility); provided, that, ~~after giving effect thereto,~~ the sum of the cumulative aggregate original amount of all the Incremental Commitments established at under this Section 2.23 and aggregate original amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) shall not, on the date of effectiveness of any Incremental Commitments under this Section 2.23 or ~~prior to~~ the date of issuance of any such ~~time does not~~ Alternative Incremental Facility Indebtedness, as the case may be, exceed ~~$100,000,000~~the Maximum Incremental Amount in effect on such date. ~~Such~~ Each such notice shall ~~set forth~~ 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 five (5) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term ~~Loan Commitments~~ Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (ivy) any Person that the Borrower proposes to become an Incremental Lender, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of ~~any request for~~ an Incremental ~~Term Loan Commitments~~Revolving Commitment, ~~whether~~ 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 ~~Incremental Term Loan Commitments are commitments~~ Issuing Bank or the Swingline Lender, as the case may be, would be required to ~~make additional Term Loans of any then outstanding Class or commitments~~ consent to ~~make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled~~ an assignment to ~~agree or decline to participate~~ such Person in ~~its sole discretion) or any Additional Lender~~accordance with Section 9.04(b)). (b) ~~It shall be a condition precedent to the effectiveness~~ The terms and conditions of any Incremental Revolving Commitment ~~that (i) no Default or Event~~ and Loans and other extensions of ~~Default~~ credit to be made thereunder shall ~~have occurred~~ 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 ~~continuing immediately prior to or immediately after giving effect to~~ treated as a single Class with such ~~Incremental Commitments~~Revolving Commitments and Loans; provided, that, (iiw) the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ maturity date of any Incremental ~~Loans)~~Revolving Commitments shall be no sooner than, ~~shall not exceed 2.75:1.00~~but may be later than, the Revolving Maturity Date, (~~iii~~x) the ~~representations~~ upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and ~~warranties set forth in Article III and in each~~ 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 ~~true~~ 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 ~~correct in all material respects (or in all respects, if qualified as to materiality) on~~ Subsidiaries that are Subsidiary Loan Parties. The terms and as conditions of ~~the date such~~ any Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments~~ Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, substantially identical to those of (x) if any Term Loans then exist, such existing Term Loans or (y) if no Term Loans then exist, the Revolving Commitments and Revolving Loans (with appropriate modifications to reflect nature of such Incremental Term Facility and the Incremental Term Loans to be made thereunder ~~shall comply with Section 2.25(c~~as term loans). ; provided, that, (ci) the upfront fees, interest rates, call protection, mandatory prepayments and amortization schedule applicable to any Incremental ~~Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the~~ Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders ~~and set forth in~~ providing the ~~applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any~~ relevant Incremental Term ~~Loans shall be no earlier than the Latest Maturity Date~~Commitments, (ii) except for Inside Maturity Accordion Indebtedness, the weighted average life to maturity of ~~the~~ any such Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of existing Term Loans with the longest remaining weighted average life to maturity at such time (or, in the case of Incremental Term Loans which are Term B Loans, the weighted average life to maturity of any then-~~outstanding~~ existing Class of Term B Loans with the longest remaining weighted average life to maturity at such time), (iii) except for Inside Maturity Accordion Indebtedness, any such Incremental Term Facility will mature no earlier than the Latest Maturity Date at such time (or, in the case of Incremental Term Loans which are Term B Loans, the latest maturity date then applicable to any then-existing Class of Term B Loans), (iv) the terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall not be materially more favorable, taken as a whole, to the lenders providing such Incremental Term Facility than (x) if any Term Loans then exist, the terms applicable to such existing Term Loans or (y) if no Term Loans then exist, the terms applicable to the Revolving Commitments and Revolving Loans (in each case as determined by Holdings in good faith), other 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 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, customary “most-favored-nation” protection, call protection, and mandatory prepayments, in each case, which may be applicable solely with respect to such Incremental Term Facility (it being understood that to the extent a mandatory prepayment is required in connection with the establishment of an Incremental Term Facility, such mandatory prepayment shall be applied ratably to all then-existing Term Loans; provided, that, a Financial Officer of Holdings shall have delivered a certificate to the Administrative Agent at least two (2) Business Days prior to the incurrence of such Incremental Term Facility (or such shorter period of time as may reasonably be agreed by the Administrative Agent), together with a summary of the material terms and conditions of such Incremental Term Facility, stating that Holdings has determined in good faith that such material terms and conditions satisfy the requirements set forth in this clause (iv), which determination shall be conclusive, (v) in the case of any Incremental Term Loans that are Term B Loans, such Incremental Term Loans that are Term B Loans may, to the extent so provided in the applicable Incremental Facility Amendment, specify whether (x) the 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) all Incremental Term Facilities shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations and (vii) no Incremental Term Facility shall be secured by any property or assets of Holdings 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. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by Holdings, the Borrower, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided, that, no Incremental Commitments shall become effective unless (i) subject to Section 1.05, no Event of Default shall have occurred and be continuing immediately before and after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) subject to Section 1.05, on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.18 in connection with such Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security~~ Commitments and the ~~borrower~~ related transactions under this Section 2.23 and ~~guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans,~~ (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans Borrower shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent an a certificate of a Financial Officer of the Borrower to the effect set forth in clauses (i) and (ii) above, together with calculations demonstrating (A) compliance with Section 2.23(a) above (and a calculation of the “Maximum Incremental ~~Assumption Agreement providing for~~ Amount” before and after giving effect to the establishment of such Incremental ~~Commitments,~~ Commitments and ~~such other documentation as the Administrative Agent shall reasonably specify to evidence~~ the Incremental ~~Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel~~ Facilities relating thereto) and ~~other documentation consistent~~ (B) that Holdings shall be in compliance with the ~~conditions~~ Financial Covenant set forth in Section ~~4.02~~6.11, ~~all to~~ calculated on a Pro Forma Basis as of the ~~extent reasonably requested by the Administrative Agent or the other parties to~~ date of establishment of such Incremental ~~Assumption Agreement~~Commitments and Incremental Facilities relating thereto (and, for the avoidance of doubt, assuming for such purposes that such Incremental Facilities are fully drawn). ~~The Administrative Agent shall promptly notify each Lender as to the effectiveness of each~~ Each Incremental ~~Assumption Agreement. Any Incremental Assumption Agreement~~ Facility Amendment may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this Section ~~2.25~~2.23. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~including any amendments necessary~~ (i) such Incremental Lender shall be deemed to ~~establish the Incremental Term Loan~~ be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Commitments, each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned~~ shall assign to each Incremental Revolving ~~Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Revolving Commitment, and each such Incremental Revolving ~~Credit~~ Lender ~~will automatically~~ shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Revolving Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each~~ all the Revolving ~~Credit Lender~~ Lenders (including ~~each~~ such Incremental Revolving ~~Credit Lender~~Lenders) ~~will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon~~ ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Credit~~ Commitment. (f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment ~~be prepaid~~ of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Borrower referred to in Section 2.23(a) and of ~~additional~~ 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 ~~Loans made hereunder so that~~ Commitments, of the Applicable Percentages of the Revolving ~~Loans are thereafter held by the Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the assignments required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~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,~~ may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from ~~time to time~~each of the Lenders with Revolving Credit Commitments of such Class, ~~request Incremental Commitments~~ at the principal amount thereof, such interests in ~~an amount~~ the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect ~~thereto~~to all such assignments and purchases, the ~~aggregate amount~~ Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental ~~Commitments established at~~ Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or ~~prior~~ delayed) to such ~~time does not exceed $100,000,000. Such notice~~ Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the ~~amount~~ applicable New Term Loan Maturity Date of ~~the Incremental Commitments being requested (which~~ each Series shall be ~~in minimum increments of $500,000 and a minimum amount of $5,000,000),~~ no earlier than the Initial Term Loan Maturity Date; (ii) the ~~date on which such Incremental Commitments are requested~~ weighted average life to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ maturity of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional all New Term Loans ~~of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which~~ shall be ~~entitled~~ no shorter than the weighted average life to ~~agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to~~ maturity of the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental then existing Initial Term Loans~~), shall not exceed 2.75:1.00~~, (iii) the ~~representations~~ pricing, interest rate margins, discounts, premiums, rate floors, fees, and ~~warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as~~ amortization schedule applicable to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental any New Term Loans shall be determined by the Borrower and the ~~Incremental Term~~ Lenders ~~and set forth in the applicable Incremental Assumption Agreement~~thereunder; provided that ~~(i)~~ solely in the ~~final maturity date~~ case of ~~any Incremental~~ New Term Loans ~~shall be no earlier than~~ incurred prior to the ~~Latest Maturity~~ 18 month anniversary of the Closing Date, ~~(ii)~~ if the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Effective Yield for LIBOR Loans in ~~right~~ respect of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such ~~Incremental~~ New Term Loans exceeds the ~~initial All-~~Effective Yield for LIBOR Loans in ~~Yield~~ respect of the ~~Tranche B~~ then existing Initial Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.50%, ~~then~~ the Applicable Margin for LIBOR Loans in respect of the ~~Tranche B~~ then existing Initial Term Loans shall ~~automatically~~ be ~~increased by~~ adjusted so that the Effective Yield ~~Differential, effective upon~~ in respect of the ~~making of such Incremental~~ then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans in respect of the New Term Loans minus 0.50%; and (viv) to the extent such terms and documentation are not consistent with the ~~terms of the Incremental~~ then existing Initial Term Loans ~~are inconsistent with the terms set forth herein~~ (except ~~as set forth in~~ to the extent permitted by clause (i), (ii) ~~through~~ or (iviii) above), ~~such terms~~ they shall be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment~~ Agent (~~and~~ it being understood that, (1) to the ~~Incremental Revolving Loans thereunder)~~ extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be ~~implemented as an increase to~~ required by the ~~Total~~ Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be ~~on terms~~ identical to the ~~existing~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans ~~thereunder~~with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrower and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (df) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section ~~2.25, including~~ 2.14. (i) The Borrower may at any ~~amendments necessary~~ time and from time to ~~establish~~ time request that all or a portion of the ~~Incremental~~ Term Loans of any Class (an “Existing Term Loan ~~Commitments and Incremental~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans ~~as a new Class or tranche of~~ (any such Term Loans which have been so converted, “Extended Term Loans”) and ~~such~~ to provide for other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section ~~2.25~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (eii) ~~Upon each increase in~~ The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments ~~pursuant to this Section ‎2.25~~of any Class, ~~each~~ any Extended Revolving Credit ~~Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each~~ Commitments and/or any Incremental Revolving Credit ~~Lender in respect of such increase~~Commitments, ~~and~~ each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 3 contracts

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

Incremental Facilities. ~~(a)~~ The Borrower ~~may,~~ Representative may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request (A) prior to the Revolving Commitment Termination Date, ~~request~~ an increase to the existing Revolving Commitments (any such increase, the “Incremental ~~Commitments~~ Revolving Commitments”) and/or (B) the increase in or the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount ~~such that, after giving effect thereto,~~ not in excess of the greater of (i) $200,000,000 in the aggregate and not less than $10,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $200,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date) and (ii) up to an additional amount of Incremental Term Loans or increases to the Incremental Revolving Commitments ~~established at or prior~~ so long as the Secured Leverage Ratio (calculated on a pro forma basis) is no more than 3.50:1.00, in each case, with respect to ~~such time does~~ any Incremental Revolving Commitments, assuming a borrowing of the maximum amount of Loans available thereunder; provided that, in either case, Incremental Revolving Commitments shall not exceed $~~100,000,000~~50,000,000 in the aggregate. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent ~~shall agree))~~and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, ~~(iii~~an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) ~~whether~~ to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments ~~are~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations and any Lender approached to provide all or a portion of the Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan Commitments ~~and (iv)~~ may elect or decline, in ~~the case of any request for~~ its sole discretion, to provide an Incremental Revolving Commitment or an Incremental Term Loan ~~Commitments~~Commitment, ~~whether such~~ as applicable. Such Incremental Revolving Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans~~ shall become effective as of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment such Increased Amount Date; provided that (i1) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (ii2) both before and after giving effect to the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date making of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, ~~(iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right~~ each of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section ~~4.02, all to~~ 3.02 shall be satisfied or waived; (3) the ~~extent reasonably requested by~~ U.S. Borrower shall be in compliance with the ~~Administrative Agent or the other parties to~~ financial covenant set forth in Section 6.07 (assuming for this purpose that such ~~Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender~~ financial covenant is in effect) as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion last day of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such thatmost recently ended four Fiscal Quarter period for which financial statements are available), after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving ~~Credit Lender~~Commitments or Incremental Term Loan Commitments, as applicable; (4) ~~will equal its Revolving Credit Percentage. If, on~~ the ~~date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such~~ Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments or Incremental Term Loan Commitments), ~~which prepayment~~ as applicable, shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to one or more Joinder Agreements executed and delivered by the ~~immediately preceding sentence.~~Borrower Representative, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Revolving Commitment Register or the Term Loan Register, as applicable, and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in

Appears in 3 contracts

Sources: Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc)

Incremental Facilities. The Borrower may (a) ~~The Borrower may,~~ add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by ~~written notice~~ 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 ~~from time~~ at least five (5) Business Days prior to ~~time~~the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, ~~request~~ collectively, the “Incremental ~~Commitments~~ 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, however, that: (a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving ~~effect thereto~~Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the ~~aggregate amount of Incremental Commitments established at~~ 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 ~~time does~~ Revolver Increase) shall not exceed ~~$100,000,000. Such notice~~ 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 ~~set forth~~ 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 accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the ~~amount of the Incremental Commitments being requested~~ extent compliant therewith) before capacity under clauses (~~which~~ ii) or (iii), and capacity under clause (iii) shall be ~~in minimum increments of $500,000~~ deemed to be used before capacity under clause (i) and ~~a minimum amount of $5,000,000~~(II) loans may be incurred under clauses (i), (ii) ~~the date on which~~ and (iii), and proceeds from any such ~~Incremental Commitments are requested to become effective~~ incurrence under clauses (~~which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)~~i), (ii) and (iii) ~~whether such~~ may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii)); (b) the Incremental ~~Commitments are Incremental~~ Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving ~~Credit Commitments or Incremental Term Loan Commitments~~ Loans, and ~~(iv)~~ in the case of any ~~request for~~ Incremental Term ~~Loan Commitments~~Facility only, ~~whether~~ 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 Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) Facility, no ~~Default or~~ Event of Default shall have occurred and be ~~continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming~~ continuing; provided that ~~all Incremental Commitments have been fully funded and without netting~~ if the proceeds of ~~any~~ the Incremental ~~Loans~~Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in 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 ~~not exceed 2.75:1.00,~~ have occurred and be continuing; (~~iii~~d) each of the representations and warranties set forth in ~~Article III~~ Section 6 and in ~~each~~ the other Loan ~~Document~~ Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or where not already qualified by materiality, otherwise in all respects~~, if qualified as to materiality~~) ~~on and~~ as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date ~~such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv)~~ of the ~~terms~~ consummation of such ~~Incremental Commitments~~ Limited Condition Acquisition and the funding of the Incremental ~~Term Loans or Incremental Revolving Loans thereunder~~ Facility, only the Specified Representations shall ~~comply with Section 2.25(c~~have to be true and correct in all material respects (without duplication of materiality qualifiers).; (ce) ~~Incremental Commitments shall be established pursuant to an amendment~~ (~~an “Incremental Assumption Agreement”~~i) ~~relating to this Agreement. The terms of the~~ 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 Term Facility; provided that such terms either (A) 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 incurrence or 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 ~~Incremental Term Lenders and set forth in~~ Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the ~~applicable Incremental Assumption Agreement; provided that (i) the~~ latest final ~~maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to~~ maturity of the ~~Incremental Term Loans shall~~ Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors accomplished without further amendment voting requirements)). The effective date of the Incremental ~~Term Loans~~ Facility shall be ~~the same as~~ agreed upon by the Borrower and ~~Guarantors with respect to~~ the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of Lenders providing the Incremental ~~Term Loans are inconsistent with~~ Facility. Upon the ~~terms set forth herein (except as set forth in clause (i) through (iv) above)~~effectiveness thereof, ~~such terms~~ Schedule 2.2 shall be ~~reasonably satisfactory~~ deemed amended to ~~the Administrative Agent. Any Incremental Revolving Credit Commitment (~~reflect any Revolver Increase and the ~~Incremental~~ new Lender (or, if applicable, existing Lender) shall advance Revolving Loans ~~thereunder) shall be implemented as~~ in an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for amount sufficient such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, that after giving effect to its Revolving Loans each ~~such deemed assignment and assumption~~ Lender shall have outstanding its Percentage of ~~participations,~~ all Revolving Loans outstanding under the ~~percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each~~ Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender ~~(including each such~~ shall have any obligation to participate in any Incremental ~~Revolving Credit~~ Facility and no Lender~~) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental~~ ’s Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be ~~accompanied by accrued interest on the Revolving Loans being prepaid~~ increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceIncremental Facility.

Appears in 3 contracts

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

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request, ~~request Incremental Commitments in an amount~~ prior to the Latest Maturity Date, additional term loans hereunder (any such ~~that, after giving effect thereto~~additional term loans, the ~~aggregate amount of~~ “Incremental ~~Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ Loans” and the commitments therefor, the “Incremental Commitments”); 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 Incremental Equivalent Debt incurred at such time, shall not exceed the Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~Limit on such date, (ii) the total aggregate principal amount of such Incremental Loans or Incremental Commitments shall, unless otherwise approved by the Administrative Agent, not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i) and (iii) the incurrence of any such Incremental Loans or Incremental Commitments is permitted pursuant to the terms of the Revolving Indebtedness Documents. (b) Each such notice shall specify (i) the date (each, an “Incremental Closing Date”) on which ~~such~~ the Borrower proposes that the Incremental ~~Commitments are requested to become effective (~~Loans shall be made, which shall be a date not be less than 10 Business Days ~~nor more than 60~~ (or such lesser number of days as may be acceptable to the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (i) the identity of each Lender or other Person that is an eligible assignee pursuant to Section 13.6(b) to whom the Borrower proposes any portion of such ~~notice~~ Incremental Commitments be allocated (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 ~~such longer or shorter period as~~ an Approved Fund shall provide Incremental Loans unless the Administrative Agent shall ~~agree)),~~ have consented thereto (~~iii~~such consent not to be unreasonably withheld or delayed) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ and (ivy) ~~in the case~~ any Lender approached to provide all or a portion of any ~~request for~~ Incremental ~~Term Loan Commitments~~Loans may elect or decline, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion~~) or any Additional Lender. (b) It shall be a condition precedent~~ , to ~~the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to~~ provide such Incremental ~~Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental~~ Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement.~~ The terms of ~~the~~ each incurrence of Incremental ~~Term~~ Loans or Incremental Commitments shall be determined by the Borrower and the ~~Incremental Term Lenders and set forth in the~~ applicable Incremental ~~Assumption Agreement~~Lenders; provided ~~that~~ that: (i) Incremental Loans or Incremental Commitments (x) secured on a pari passu basis with the ~~final maturity date of any Incremental Term Loans~~ Obligations shall ~~be no~~ not mature earlier than the Latest Maturity ~~Date~~Date and the Weighted Average Life to Maturity of such Incremental Loans or Incremental Commitments shall not be shorter than the remaining Weighted Average Life to Maturity of the Loans outstanding as of such Incremental Closing Date and (y) either secured on a junior basis to the Obligations or unsecured shall not mature earlier than 91 days after the Latest Maturity Date of the Loans outstanding as of such Incremental Closing Date (except in the case of customary 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; (ii) the ~~average life~~ All-In Yield of any Incremental Loans incurred within twelve (12) months after the Closing Date shall be determined by the Borrower and the applicable Incremental Lenders (provided that the All-In Yield applicable to ~~maturity of~~ such Incremental Loans shall not be greater than the All-In Yield for the Initial Loans plus 50 basis points per annum unless the ABR Margin and the Eurodollar Margin are increased so as to cause the All-In Yield for the Initial Loans to equal the All-In Yield for such Incremental ~~Term~~ Loans minus 50 basis points per annum); (iii) (A) if such Incremental Loans are secured, they will be secured solely by Collateral on pari passu or junior (but in no event senior) basis with the Obligations and, if necessary, will be subject to an Acceptable Intercreditor Agreement and (B) no Incremental Loans shall be ~~no shorter~~ guaranteed by any Person other than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.Subsidiary Guarantors;

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of one or more (x) additional term loans, ~~request~~ which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments ~~in an amount such that, after giving effect~~ (the commitments thereto, the ~~aggregate amount~~ “New Revolving Credit Commitments”) or a separate Class of ~~Incremental~~ Revolving Credit Commitments ~~established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (i) the ~~amount of~~ commitments thereto, the ~~Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~“Additional Revolving Credit Commitments” and, ~~(ii)~~ together with the ~~date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ New Revolving Credit Commitments, the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are~~ “Incremental Revolving Credit ~~Commitments or~~ Commitments”; together with the Incremental Term Loan Commitments and the Incremental Term C Loan Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the ~~case~~ Maximum Incremental Facilities Amount at the time of ~~any request for~~ incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental ~~Term Loan Commitments~~Facilities Amount at such time). Each such notice shall specify the date (each, ~~whether such~~ an “Increased Amount Date”) on which the Borrower proposes that the Incremental ~~Term~~ Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~shall be effective. The Borrower may ~~seek~~ approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments ~~from existing Lenders (each of which shall be entitled to agree~~ may elect or ~~decline to participate~~ decline, in its sole discretion~~) or~~ , to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any ~~Additional Lender. (b) It shall be a condition precedent~~ existing Lender to ~~the effectiveness of~~ provide any Incremental ~~Commitment that~~ Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing~~ exist on such Increased Amount Date immediately ~~prior to~~ before or immediately after giving effect to such Incremental ~~Commitments~~Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ in connection with any incurrence of ~~any~~ Incremental Loans), or establishment of Incremental Loan Commitments, on an Increased Amount Date, there shall ~~not exceed 2.75:1.00, (iii)~~ be no requirement for the Borrower to bring down the representations and warranties ~~set forth~~ under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, in ~~Article III and in each~~ the case of Incremental Loans or Incremental Loan Commitments used to finance a Permitted Acquisition or other ~~Loan Document~~ acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall be required to be true and correct in all material respects ~~(or in all respects,~~ if ~~qualified as to materiality) on and as~~ requested by the Persons holding more than 50% of the ~~date such~~ applicable Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term~~ Loans or Incremental ~~Revolving Loans thereunder shall comply with Section 2.25(c~~Loan Commitments). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ Loan Commitments shall be ~~the same as~~ effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment (~~, and ~~the Incremental Revolving Loans thereunder)~~ each of which shall be ~~implemented as an increase to~~ recorded in the ~~Total Revolving Credit Commitments~~ Register and shall be ~~on terms identical~~ subject to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions requirements set forth in Section ~~4.02~~5.4(e), all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the ~~establishment of such new Class or tranche~~Incremental Loan Commitments, ~~in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit~~ as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section ~~‎2.25~~2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit ~~Lender~~ Lenders with a an existing Revolving Credit Commitment ~~immediately prior to~~ of the Class being increased by such ~~increase will~~ New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each ~~Incremental~~ Revolving Credit Lender ~~in respect~~ with a New Revolving Credit Commitment of such ~~increase~~Class (each, a “New Revolving Loan Lender”), and each of such ~~Incremental~~ New Revolving ~~Credit Lender will~~ Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such ~~existing~~ Revolving Credit Lender’s participations hereunder in outstanding Revolving Letters of ~~Credit such that~~Credit, so that after giving effect to each such deemed assignment and assumption ~~of participations~~and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such ~~Incremental~~ New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit ~~Lender) will equal its~~ Commitments of all Revolving Credit ~~Percentage. If~~Lenders under the Credit Facilities, on and (ii) at the ~~date of such increase, there are any Revolving Loans outstanding~~principal amount thereof, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by interests in the Revolving Credit ~~Lenders according~~ Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to ~~their~~ all such assignments and assumptions, the Revolving Credit ~~Percentages (~~Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the ~~increase in~~ addition of such New Revolving Credit ~~Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any~~ Commitments to such existing Revolving Credit ~~Lender in accordance with Section 2.16. The~~ 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 this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the ~~immediately preceding sentence~~“Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date (x) on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term 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 and (y) on which any Incremental Term C Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans); (iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any Incremental Term Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 2018 Incremental Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be adjusted so that the Yield in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, is equal to the Yield i

Appears in 2 contracts

Sources: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Energy Corp.)

Incremental Facilities. ~~(a)~~ The Borrower ~~may~~may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent ~~from time~~ in the form attached hereto as Exhibit G or in such other form acceptable to ~~time, request Incremental Commitments in an amount such that, after giving effect thereto,~~ the ~~aggregate amount of Incremental Commitments established~~ Administrative Agent (a “Commitment Amount Increase Request”) at or least five (5) Business Days prior to the desired effective date of such ~~time does not exceed $100,000,000. Such notice shall set forth~~ increase (the “Commitment Amount Increase”) (i) an increase to the ~~amount of~~ then existing Revolving Credit Commitments (any such increase, the “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000),~~ Revolving Credit Commitments”) and/or (ii) the ~~date~~ establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $600,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,200,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments ~~are requested to become effective (which shall not~~ or Incremental Term Loan Commitments, as applicable, be ~~less than 10 Business Days nor more than 60 days after~~ allocated and the ~~date~~ amount of such ~~notice (or such longer or shorter period as the~~ allocations; provided that Administrative Agent ~~shall agree)), (iii) whether~~ may elect or decline to arrange such ~~Incremental Commitments are~~ Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and ~~(iv) in~~ any Lender approached to provide all or a portion of the ~~case of any request for~~ Incremental ~~Term Loan Commitments, whether such~~ Revolving Credit Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion) , to provide an Incremental Revolving Credit Commitment or ~~any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any~~ an Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Term Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Commitment. Any Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments~~ made on an Increased Amount Date shall be ~~established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined~~ designated a separate series identified by the ~~Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final~~ year of maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans (or month and ~~(v) to the extent the terms of the~~ year if there are multiple Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, maturing in the ~~reasonable opinion~~ same year) (each, a “Series”) of ~~the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and~~ Incremental Term Loans ~~as a new Class or tranche~~ for all purposes of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this ~~Section 2.25~~Agreement. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

Sources: Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc)

Incremental Facilities. ~~(a)~~ The Borrower may, by written notice to the Administrative Agent from time to ~~time~~time during the Incremental Availability Period, request ~~Incremental Commitments~~ the establishment of one or more incremental term loan facilities, for the purposes of funding a Permitted Subsequent Funding Use, in an aggregate principal amount ~~such that, after giving effect thereto,~~ not to exceed the ~~aggregate~~ Incremental Facility Amount to be documented as an increase in the total amount of ~~Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ the Loans under this Agreement; provided that (i) ~~the amount of the Incremental Commitments being requested~~ there shall not be more than three incremental term loan facilities per calendar year and (~~which~~ ii) each incremental term loan facility shall be in ~~minimum increments of $500,000 and~~ a minimum amount of $~~5,000,000)~~10,000,000, 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, (iiw) such Additional Covered Project shall have been approved by the Lenders in their sole discretion, (x) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as applicable Restricted Project Company and the Administrative Agent shall ~~agree))~~have agreed in writing that such Restricted Project Company shall be an Additional Covered Project Company hereunder, (~~iii~~y) ~~whether~~ the Borrower or the applicable Additional Project Company shall have entered into Project Documents in respect of such ~~Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ Additional Covered Project in form and ~~(iv) in~~ substance acceptable to the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate Administrative Agent in its sole discretion, and (z) ~~or any~~ the Borrower and the Administrative Agent shall have agreed in writing as to the Project Payoff Amount with respect to such Additional ~~Lender.~~Covered Project; (b~~) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i~~) 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 immediately prior to~~ continuing, or ~~immediately after giving effect to~~ shall occur as a result thereof as of the effective date of such ~~Incremental Commitments,~~ incremental term loan facilities; (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iiid) the representations and warranties of each Loan Party set forth in ~~Article III and in each other Loan Document~~ the Financing Documents shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of the effective date of such ~~Incremental Commitments become effective~~ incremental term loan facilities (except where already qualified by materiality or ~~if such representation and warranty relates to another date~~Material Adverse Effect, ~~such other date) and~~ in which case, in all respects); (ive) the ~~terms of~~ Lenders shall have received Investment Committee approval for such ~~Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~incremental term loan facilities; (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (if) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each other applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section ~~4.02~~4.04 shall have been satisfied as of the effective date of such incremental term loan facilities; and (g) the terms of any such incremental facility shall be identical to those of the existing Loans, ~~all to the extent reasonably requested~~ unless otherwise agreed by the Administrative Agent or and the ~~other parties~~ 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 Assumption Agreement~~incremental term loan facility. ~~The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may~~In connection with any such incremental term loan facility, ~~without consent of any other 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~~ acceptable to the ~~reasonable opinion of~~ Lenders and the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in ~~the~~ their reasonable ~~opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~discretion. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower may, at any time, on one or more occasions on or after the 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 ~~written notice~~ 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; provided that, (i) no Incremental 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) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender, (iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan, (iv) except as otherwise permitted herein the terms of any Incremental Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be (x) reasonably acceptable to the Administrative Agent ~~from time~~ or (y) only applicable to ~~time~~the period after the Latest Maturity Date, (v) each Incremental Revolving Facility shall have the same terms, ~~request~~ other than upfront fees, as the Revolving Facility, (vi) the final maturity date with respect to any Class of Incremental ~~Commitments in an amount such that, after~~ Term Loans shall be no earlier than the Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect ~~thereto~~to any prepayment thereof), (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility, (ix) subject to clause (v) above, the ~~aggregate amount~~ pricing (including interest rate and fees) of any Incremental ~~Commitments established at~~ Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility, (A) each Incremental Term Facility or ~~prior to such time does not exceed $100,000,000. Such notice~~ Incremental Revolving Facility shall ~~set forth~~ rank (i) on a pari passu basis with or on a junior basis to the ~~amount~~ Term Loans and Revolving Loans in right of ~~the Incremental Commitments being requested (which shall be in minimum increments of $500,000~~ payment and ~~a minimum amount of $5,000,000),~~ (ii) on a pari passu basis with the ~~date on which such Incremental Commitments are requested to become effective (which~~ Term Loans and Revolving Loans in right of security or shall ~~not~~ be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments unsecured and (ivB) in 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 case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.Collateral, (bxi) ~~It shall be a condition precedent~~ (A) subject to ~~the effectiveness of any Incremental Commitment that (i)~~ Section 1.12, no Default or Event of Default shall ~~have occurred and be continuing~~ exist immediately prior to or ~~immediately~~ after giving effect to such Incremental ~~Commitments~~Facility, and (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iiiB) 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 each~~ the other Loan ~~Document~~ Documents shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects~~, if qualified as to materiality~~) on and as of the date such Incremental ~~Commitments become~~ Facility becomes effective ~~(or if~~ with the same effect as though such representations and warranties had been made on and as of such date; provided that, to the extent that any representation and warranty ~~relates~~ specifically refers to ~~another date~~a given date or period, it shall be true and correct in all material respects as of such ~~other date~~date or for such period; (xii) any Incremental Term Facility shall participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) and (ivB) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) and (c), in each case, to the extent provided in such Sections, (xiii) the ~~terms~~ proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, and (xiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having 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 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 ~~the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~related Obligations had been acquired by such Lender by way of assignment. (c) Each Lender or Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date Lender providing a portion of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an and the Borrower all such documentation (including the relevant Incremental ~~Assumption Agreement providing for~~ Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of 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 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 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 Incremental Facility or Incremental Loans, (iv) subject to Section 2.20(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the 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 (a)(xi) 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 deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of 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 ~~documentation as~~ Revolving Lenders (including the ~~Administrative Agent~~ Revolving Lenders providing the relevant Incremental Revolving Facility) shall ~~reasonably specify to evidence the Incremental Commitment of~~ purchase such Revolving Loans, in each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all case to the extent ~~reasonably requested~~ necessary so that all of the 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 any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement mayBorrower, ~~without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of~~ the Administrative Agent and the ~~Borrower,~~ relevant Issuing Bank. (g) The Lenders hereby irrevocably authorize the Administrative Agent to ~~effect the provisions~~ enter into any Incremental Amendment and/or any amendment to any other Loan Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section ~~2.25~~2.20, ~~including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and~~ such ~~other~~ technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new ~~Class~~ Classes or ~~tranche~~sub-Classes, in each case on terms consistent with this Section ~~2.25~~2.20 and such other amendments as are described in Section 9.02. (eh) ~~Upon each increase~~ Notwithstanding anything to the contrary in ~~the Revolving Credit Commitments pursuant to~~ this Section ~~‎2.25~~2.20 or in any other provision of any Loan Document, ~~each Revolving Credit Lender with~~ if the proceeds of any Incremental Facility are intended to be applied to finance a ~~Revolving Credit Commitment immediately prior to such increase will automatically~~ Permitted Acquisition or other similar Investment and ~~without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each~~ the lenders providing such Incremental ~~Revolving Credit Lender will automatically and without further act~~ Facility so agree, the availability thereof shall be ~~deemed~~ subject to ~~have assumed, a portion~~ customary “SunGard” or “certain funds” conditionality. (i) This Section 2.20 shall supersede any provision in Section 9.02 to the contrary. Each of ~~such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such~~ the parties hereto hereby agrees that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of ~~such~~ any Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments)Amendment, ~~which prepayment~~ this Agreement shall be ~~accompanied by accrued interest on~~ amended as necessary or appropriate, in the ~~Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The~~ reasonable opinion of the Administrative Agent and the 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 other Lender (other than the Incremental Lenders ~~hereby agree that the minimum borrowing~~providing such Incremental Facility), ~~pro rata borrowing~~ and ~~pro rata payment requirements contained elsewhere in this Agreement shall not apply~~ furnished to the ~~transactions effected pursuant to the immediately preceding sentence~~other parties hereto.

Appears in 2 contracts

Sources: Credit Agreement (Waldencast PLC), Credit Agreement (Waldencast Acquisition Corp.)

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~increase the existing Revolving Credit Commitments of any Class (any such increase, ~~request~~ the “Incremental Revolving Credit Commitments”) and/or increase the existing Initial Term Commitments in or incur one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount ~~such that~~(1) not to exceed in the aggregate, ~~after giving effect thereto~~at the time of incurrence, the ~~aggregate amount of~~ Incremental Available Amount and (2) not less than, individually, $25,000,000. All Incremental Term Loan Commitments, Incremental Term Loans, Incremental Revolving Loans and Incremental Revolving Credit Commitments ~~established at or prior to~~ shall be in Dollars. (b) Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice~~ Administrative Agent (or such ~~longer or~~ shorter period of time as may be agreed to by the Administrative Agent ~~shall agree))~~in its sole discretion) and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (~~iii~~each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) ~~whether~~ to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans 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 of each notice to any applicable Revolving Credit Lender of any given Class, the respective interests in such Revolving Credit L▇▇▇▇▇’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 ~~and~~ shall become effective as of such Increased Amount Date; provided that: (ivi) (x) subject, solely in the case of ~~any request for~~ 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, ~~whether~~ 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 ~~Commitments are commitments~~ Lenders to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment require that ~~(i)~~ no Default or Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall ~~have occurred and be continuing immediately prior to~~ exist before or ~~immediately~~ after giving effect to such Incremental ~~Commitments,~~ Term Loans and (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iiiy) the representations and warranties ~~set forth in Article III~~ of the Borrower and in each other Loan ~~Document~~ Party contained in Article 5 hereof shall be true and correct in all material respects (~~or in all respects, if~~ 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 ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ date, except in each case to the extent that such ~~other~~ representations and warranties specifically refer to an earlier date) , in which case they shall be true and ~~(iv) the terms~~ correct as of such ~~Incremental Commitments and~~ earlier date); provided that, in the case of Incremental Term Loans ~~or Incremental Revolving Loans thereunder~~ incurred to finance a Permitted Acquisition, this clause (i)(y) shall ~~comply with Section 2.25(c).~~be limited to the Specified Representations; (cii) with regard to the incurrence of any additional Class of Incremental ~~Commitments shall be established~~ Term Loans incurred prior to the first anniversary of the Closing Date pursuant to this Section 2.14 that is in an ~~amendment (an “Incremental Assumption Agreement”) relating~~ aggregate principal amount at the time of such incurrence in excess of $50,000,000, the yield applicable to ~~this Agreement. The terms~~ each such additional Class of ~~the~~ Incremental Term Loans shall be determined by the Borrower and the applicable lenders under such additional Class of Incremental Term ~~Lenders and~~ Loans as set forth in the applicable Joinder Agreement; provided that the Effective Yield applicable to such additional Class of Incremental ~~Assumption Agreement~~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 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 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 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, (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 (i) the ~~final maturity date~~ terms of ~~any~~ such Incremental Term Loans and Incremental Term Loan Commitments shall not be ~~no earlier~~ 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~~Date at the time such Incremental Term Loans and Incremental Term Loan Commitments is established or (y) this Agreement is amended so that such terms as are beneficial to the Lenders are also applicable for the benefit of any Lenders under any then-existing Facilities, (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~the~~ all Incremental Term Loans shall be no shorter than the ~~remaining average life~~ Weighted Average Life to ~~maturity~~ Maturity of any ~~then-outstanding Class~~ other Term Loans at the time of the incurrence of such Incremental Term Loans, (iii) the applicable Incremental Term ~~Loans will rank pari passu with (or junior to)~~ Loan Maturity Date of each Class shall be no shorter than the ~~Tranche B Term Loans in right of payment and with respect to security and~~ Latest Maturity Date at the ~~borrower and guarantors~~ time of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making incurrence of such Incremental Term Loans and (viv) ~~to the extent the terms of the~~ such Incremental Term Loans ~~are inconsistent with~~ may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Joinder Agreement. (h) The terms ~~set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (~~and provisions of the Incremental Revolving Loans ~~thereunder) shall be implemented as an increase to the Total~~ and Incremental Revolving Credit Commitments ~~and~~ shall be ~~on terms~~ identical to the ~~existing~~ other Revolving Credit Loans of the Class being so increased and the Revolving Credit Commitments ~~(and~~ of the Class being so increased; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving ~~Loans thereunder)~~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. (di) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25,~~ 2.14 (including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to ~~establish the Incremental Term Loan Commitments and~~ enable any Incremental Term Loans ~~as a new Class or tranche of~~ that are intended to be fungible with any other Term Loans ~~and~~ to be fungible with such other ~~technical~~ Term Loans, which shall include any amendments ~~as may be necessary or appropriate in~~ that modify the ~~reasonable opinion~~ aggregate principal amount of scheduled installment payments to the ~~Administrative Agent and~~ extent such amendment does not decrease the ~~Borrower in connection with the establishment of~~ installment payment an existing Term Lender would have received prior to giving effect to any such ~~new Class or tranche, in each case on terms consistent with this Section 2.25~~amendment). (ej) ~~Upon each increase~~ This Section 2.14 shall supersede any provisions in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect 2.13 or Section 10.01 to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request (i) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental ~~Commitments in an amount such that~~Revolving Commitment Increase”) and/or (ii) the establishment of Incremental Term Commitments, ~~after giving effect thereto,~~ provided that (A) the aggregate amount of all the Incremental ~~Commitments~~ Revolving Commitment Increases established ~~at or prior to such time does~~ hereunder shall not exceed $~~100,000,000~~25,000,000 and (B) the aggregate amount of all the Incremental Term Commitments and all Incremental Revolving Commitment Increases established hereunder shall not exceed the difference between (1) $100,000,000 and (2) the aggregate principal amount of Permitted Secured Indebtedness incurred after the Effective Date. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the date on which the Borrower proposes that the Incremental Revolving Commitment Increases or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental ~~Commitments~~ Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (~~which shall be~~ it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment may elect or decline, in ~~minimum increments of $500,000 and a minimum amount of $5,000,000)~~its sole discretion, to provide such Incremental Revolving Commitment Increase or Incremental Term Commitments, (iiy) the ~~date on which such Incremental Commitments are requested to become effective (which~~ Borrower shall not be ~~less than 10 Business Days nor more than 60 days after~~ required to approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the ~~date of~~ Borrower proposes to become a Lender under any Incremental Term Commitment or Incremental Revolving Commitment Increase, if such ~~notice (or such longer or shorter period as~~ Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent ~~shall agree))~~and, ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv)~~ in the case of any ~~request for~~ proposed Incremental ~~Term Loan Commitments~~Revolving Commitment Increase, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each ~~of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional~~ Issuing Bank and the Swingline Lender). (b) It The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a ~~condition precedent~~ single Class with such Revolving Commitments and Revolving Loans; provided that the interest margin or commitment fees applicable to any Incremental Revolving Commitment Increase may exceed the interest margin or fees payable with respect to the ~~effectiveness~~ 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 Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Term Commitments and the Incremental Term Loans ~~or Incremental Revolving Loans~~ to be made thereunder shall ~~comply with Section 2.25(c). (c) Incremental Commitments shall~~ be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental ~~Assumption Agreement~~Facility Agreement and may be different to those of the Term Commitments and the Term Loans (provided that, except with respect to matters contemplated by clauses (i), (ii) and (iii) below or customary for a “Term B” institutional loan tranche, any differences shall be reasonably satisfactory to the Administrative Agent); provided that (i) the ~~final maturity date~~ Weighted Average Life to Maturity of any ~~Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the~~ Incremental Term Loans shall be no shorter than the remaining ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~any then-outstanding Class of Term~~ the Initial Terms Loans, (ii) no Incremental Term Loan Maturity Date shall be earlier than the Initial Term Maturity Date and (iii) ~~the~~ any Incremental Term ~~Loans will~~ Loan shall rank pari passu ~~with (~~or junior ~~to) the Tranche B Term Loans~~ in right of payment and of security with ~~respect~~ the Initial Term Loans and shall be secured only by the Collateral securing the Obligations. Any Incremental Term Commitments established pursuant to ~~security~~ an Incremental Facility Agreement that have identical terms and ~~the borrower~~ conditions, and ~~guarantors of the~~ any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. (c) 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 ~~same~~ Borrower, each Incremental Lender providing such Incremental Term Commitments or Incremental Revolving Commitment Increase, as the case may be, and the Administrative Agent; provided that no Incremental Term Commitments or Incremental Revolving Commitment Increases shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments or Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to such Incremental Revolving Commitment Increase or Incremental Term Loan Commitments and the making of Loans pursuant thereto (and assuming that the amount of any Incremental Revolving Commitment Increase is fully drawn), the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and ~~Guarantors with respect~~ 6.13, recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower for which financial statements shall have been delivered pursuant to Section 5.01(a) or (b) (or, prior to the ~~Term Loans~~delivery of any such financial statements, ending with the last fiscal quarter included in the Pro Forma Financial Statements) and (iv) if the ~~All-~~Borrower shall make any payments required to be made pursuant to Section 2.16 in ~~Yield on~~ connection with such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Commitments or Incremental Revolving ~~Credit~~ Commitment (Increase and the related transactions under this Section. Each Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this ~~Section 2.25~~Section, ~~including~~ provided that to the extent that any ~~amendments necessary~~ term of any such amendment could not be approved as an amendment of this Agreement by the Lenders providing such Incremental Term Commitments voting as a single Class without the approval of any other Lender, such amendment will be subject to ~~establish~~ the approval of the requisite Lenders required under this Agreement. (d) Upon the effectiveness of an Incremental Term Commitment or Incremental Revolving Commitment Increase of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment Increase, (A) if the applicable Lender does not already have a Revolving Commitment, such Incremental Revolving Commitment Increase shall constitute the Revolving Commitment of such Lender as provided in the Incremental ~~Term Loan Commitments and~~ Facility Agreement applicable to such Incremental ~~Term Loans~~ Revolving Commitment Increase, (B) if the applicable Lender already has a Revolving Commitment, the Revolving Commitment of such Lender shall be increased as ~~a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate~~ provided in the ~~reasonable opinion of~~ Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase and (C) the ~~Administrative Agent and~~ Aggregate Revolving Commitment shall be increased by the ~~Borrower in connection with the establishment~~ amount of such ~~new Class or tranche~~Incremental Revolving Commitment Increase, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment Increase, the Revolving Exposure of the Revolving Lender making such Incremental Revolving Commitment Increase, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Commitment Increase, each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned~~ shall assign to each Revolving Lender making such Incremental Revolving ~~Credit Lender in respect of such increase~~Commitment Increase, and each such Revolving Lender making such Incremental Revolving ~~Credit Lender will automatically~~ Commitment Increase shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Revolving Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each~~ all the Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Credit~~ Commitment ~~be prepaid~~ Increase. (f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Borrower referred to in Section 2.21(a) and of ~~additional~~ 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 ~~Loans made hereunder so that~~ Commitment Increase, of the Applicable Percentages of the Revolving ~~Loans are thereafter held by the Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the assignments required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~Section 2.21(e).

Appears in 2 contracts

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

Incremental Facilities. (a) ~~The Borrower~~ At any time the Borrower, may, ~~by written notice to the Administrative Agent from time to time~~if it so elects, ~~request Incremental Commitments in an amount such that, after giving effect thereto,~~ (i) increase the aggregate amount of the revolving Commitments (each, an “Incremental ~~Commitments established at~~ Revolving Increase”) or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) request the ~~date on which such~~ addition of one or more new tranches of term loans (each, an “Incremental ~~Commitments are requested~~ Term Facility” and, together with the Incremental Revolving Increases, the “Incremental Facilities”), either by designating one or more financial institutions not theretofore a Lender (each, a “New Lender”) to become a Lender (such designation to be effective (only with the prior written consent of the Administrative Agent, which ~~shall~~ consent will not be ~~less than 10 Business Days nor more than 60 days after the date of such notice (~~unreasonably withheld or ~~such longer or shorter period as the Administrative Agent shall agree)~~delayed), ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments~~ and/or by agreeing with one or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from more existing Lenders (each, an “Increasing Lender”) that each ~~of which~~ such Lender’s Commitment shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred increased. Upon execution and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined delivery by the Borrower and ~~the Incremental Term Lenders and set forth~~ such Lender or other financial institution of an instrument in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be form reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent ~~and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement~~ providing for such new or increased Commitment, addressing the other matters related thereto contemplated in this Section, and, with respect to an Incremental ~~Commitments~~Term Facility, providing for appropriate modifications for obligations of Lenders, commitments and loans (each, an “Incremental Amendment”), each such ~~other documentation~~ New Lender and Increasing Lender shall have a Commitment as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in ~~Section 4.02~~such instrument with all the rights and obligations of a Lender with such a Commitment hereunder, ~~all~~ the commitments of Lenders agreeing to ~~the extent reasonably requested by the Administrative Agent or the other parties to~~ provide such Incremental ~~Assumption Agreement. The Administrative Agent~~ Facilities shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations become “Commitments” hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any ~~costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing~~Incremental Facilities shall, ~~pro rata borrowing and pro rata payment requirements contained elsewhere in~~ when made, constitute “Loans” under this ~~Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.~~Agreement; provided that:

Appears in 2 contracts

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

Incremental Facilities. (a) ~~The~~ At any time after the Closing Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request (i) prior to the Latest Revolving Credit Maturity Date, ~~request~~ one or more increases to the Revolving Credit Commitments (any such increase, the “Incremental ~~Commitments~~ Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan facilities, which may take the form of an increase to any then-existing term loan facility (an “Incremental Term Loan Facility”; the commitments in respect thereof, the “Incremental Term Loan Commitments” and, together with the Incremental Revolving Credit Commitments, the “Incremental Loan Commitments”). Each Incremental Revolving Credit Commitment and Incremental Term Loan Commitment shall be in an aggregate principal amount ~~such that, after giving effect thereto,~~ not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount of 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 ~~established at~~ obtained on or prior to such ~~time does not exceed $100,000,000~~date). ~~Such~~ Each such notice shall ~~set forth~~ (iI) specify (A) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than five Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice~~ Administrative Agent (or such ~~longer or~~ shorter period as shall be reasonably acceptable to the Administrative ~~Agent shall agree))~~Agent) and (B) the identity of each Lender or other Person that is a Person that would be permitted to be an assignee of the Loans pursuant to Section 13.6(b) (each, ~~(iii~~an “Incremental Revolving Credit Lender” or “Incremental Term Loan Lender,” as applicable, and together, the “Incremental Lenders”) ~~whether~~ to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments ~~are~~ or Incremental Term Loan Commitments, as applicable, be allocated, and (II) may also provide the proposed amounts of such allocations; provided that (x) any Lender approached to provide all or a portion of the Incremental 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 (ivy) in the case of ~~any request for~~ Incremental ~~Term Loan~~ Revolving Credit Commitments, ~~whether~~ 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 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 ~~are commitments to make additional Term Loans~~ shall become effective as of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment such Increased Amount Date; provided that (i1) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately~~ exist on such Increased Amount Date after giving effect to such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, (ii2) after giving effect to the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ making of any Incremental ~~Loans)~~Term Loans or effectiveness of Incremental Revolving Credit Commitments, ~~shall not exceed 2.75:1.00, (iii) the~~ all representations and warranties ~~set forth~~ made by any Credit Party contained herein or in ~~Article III and in each~~ the other ~~Loan Document~~ Credit Documents shall be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects~~, if qualified~~ ) with the same effect as ~~to materiality)~~ 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 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 ~~date~~ 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 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 ~~become effective~~ 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 (~~or if such representation and warranty relates to another date, such other date~~1) and (iv2) of the ~~terms~~ second proviso of ~~such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with~~ this Section ~~2.25(c~~2.14(a)~~. (c) Incremental Commitments~~ , shall be ~~established pursuant~~ subject, in each case, to the Borrower’s right to make an ~~amendment (an “Incremental Assumption Agreement”~~LCT Election with respect to any Limited Condition Transaction, in which case, Section 1.12(b) ~~relating to this Agreement. The terms of the Incremental Term Loans~~ shall ~~be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement~~apply; provided that (ix) ~~the final maturity date of any Incremental Term Loans~~ there shall be no ~~earlier than the Latest Maturity Date,~~ Event of Default under Sections 11.1 and 11.5 (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the ~~Term Loans, (iv~~Borrower) if on the ~~All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield~~ date of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making Borrowing of such Incremental ~~Term Loans~~ Loans, and (vy) the conditions applicable to the ~~extent~~ availability of Loans pursuant to such 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 ~~Term Loans are inconsistent with~~ Revolving Credit Lenders, and each of the ~~terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any~~ Incremental Revolving Credit ~~Commitment (and~~ Lenders shall purchase from each of the ~~Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total~~ relevant Revolving Credit ~~Commitments and shall be on terms identical to~~ Lenders, at the ~~existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments~~principal amount thereof, ~~the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for~~ such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase interests in the Revolving Credit ~~Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to~~ Loans outstanding on such ~~increase will automatically and without further act~~ Increased Amount Date as shall be ~~deemed to have assigned to each Incremental Revolving Credit Lender~~ necessary in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding participations hereunder in Letters of~~ such Revolving Credit Loans will be held by ~~each~~ such existing Revolving Credit ~~Lender (including each such~~ Lenders and Incremental Revolving Credit ~~Lender) will equal its~~ Lenders ratably in accordance with their Revolving Credit ~~Percentage. If, on~~ Commitments after giving effect to the ~~date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness~~ addition of such Incremental Revolving Credit ~~Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by~~ Commitments to the Revolving Credit ~~Lenders according to their~~ Commitments, (b) each Incremental Revolving Credit ~~Percentages (after giving effect to the increase in~~ Commitment shall be deemed for all purposes a Revolving Credit ~~Commitments), which prepayment~~ Commitment and each Loan made thereunder shall be ~~accompanied by accrued interest on the~~ deemed, for all purposes, a Revolving ~~Loans being prepaid~~ Credit Loan and ~~any costs incurred by any~~ (c) each Incremental Revolving Credit Lender ~~in accordance~~ shall become a Lender with ~~Section 2.16~~respect to the Incremental Revolving Credit Commitment and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum ~~borrowing~~assignment, ~~pro rata~~ borrowing and ~~pro rata payment~~ prepayment requirements ~~contained elsewhere~~ in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (c) Any Incremental Term Loans effected through the establishment of one or more new Term Loans made on an Increased Amount Date shall be designated a separate Class of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class (it being understood that any Incremental Term Loan Facility may provide for delayed draw term loans to be made at a later date), and (ii) each Incremental Term Loan Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, Incremental Term Loans may, subject to clause (e) below, have identical terms to the Initial Term Loans (or any other then-existing Class of Term Loans) and be treated as the same Class as the Initial Term Loans (or any other then-existing Class of Term Loans). (d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the Class of Incremental Revolving Credit Commitments and the Incremental Revolving Credit Lenders of such Class or the Class of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Class, as applicable, and (z) in the case of each notice to 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 such provisions are applicable only after the Latest Term Loan Maturity Date or Latest Revolving Credit Maturity Date, as applicable, at such time or (z) such provisions are otherwise reasonably satisfactory to the Administrative Agent (which additional terms shall, notwithstanding anything to the contrary in Section 13.1, apply automatically to this agreement without the consent of any Lender, the Letter of Credit Issuer or, in the case of clause (x) or (y) of this paragraph (e), the Administrative Agent). In any event: (i) any Incremental Revolving Credit Commitments shall have the same terms and ranking as the Revolving Credit Commitments prior to the Increased Amount Date (as such terms may be modified in accordance with the immediately preceding proviso); (ii) the Weighted Average Life to Maturity of all Incremental Term Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (except by virtue of amortization or prepayment of the Initial Term Loans prior to the time of such incurrence); (iii) the Maturity Date of any Class of the Incremental Term Loans shall be no earlier than the maturity of the Initial Term Loans; (iv) the Incremental Term Loans may share ratably in right of prepayment with the Initial Term Loans pursuant to Section 5.1 or 5.2 or otherwise; provided that the Incremental Term Loans may, as the Borrower and the Incremental Term Loan Lenders may determine in their sole discretion, be afforded lesser payments; (v) the Effective Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the Effective Yield with respect to such Incremental Term Loans shall not be greater than the Effective Yield with respect to the then existing Initial Term Loans, plus 50 basis points per annum unless the interest rate with respect to the Initial Term Loans is increased so as to cause the then applicable Effective Yield on the Initial Term Loans to equal the Effective Yield then applicable to the Incremental Term Loans minus 50 basis points (this proviso to this clause (v), the “MFN Protection”); (vi) (x) the liens securing the Incremental Term Loans will rank pari passu with the liens securing the Initial Term Loans and (y) the Incremental Term Loans shall have the same guarantees as, and will rank pari passu in right of payment with, the existing Initial Term Loans. (f) Each Joinder Agreement may, without the consent of any 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 Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provision of this Section 2.14, and this Section 2.14 shall supersede any provisions of Sections 5, 13.8(b) or 13.1 to the contrary. (g) The Incremental Term Loans, the Incremental Term Loan Commitments and the Incremental Revolving Credit Commitments extended or established pursuant to this Section 2.14 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantee and security interests created by the Security Documents. The Credit Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien granted by the Security Documents continues to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Incremental Term Loans or any such Incremental Term Loan Commitments and Incremental Revolving Credit Commitments.

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, by written notice to Administrative Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “ Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount, when taken together with the principal amount of Permitted Other Indebtedness outstanding at such time pursuant to Section 10.1(x)(i), not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable (or, in connection with a Limited Condition Transaction, at the time of such Increased Amount Date or, if earlier, at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 11.1 or Section 11.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from ~~time to time~~each of the Lenders with Revolving Credit Commitments of such Class, ~~request Incremental Commitments~~ at the principal amount thereof, such interests in ~~an amount~~ the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect ~~thereto~~to all such assignments and purchases, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date Revolving Credit Loans of such ~~notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental~~ Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments ~~or Incremental Term Loan Commitments and (iv) in the case~~ of ~~any request for Incremental Term Loan Commitments, whether~~ such ~~Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding~~ Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the ~~Total Leverage Ratio~~New Revolving Loan Lenders, ~~determined on~~ the “Incremental Revolving Loan Lenders”) shall become a ~~Pro Forma Basis (assuming~~ Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that ~~all Incremental Commitments have been fully funded and without netting~~ the ~~proceeds of any Incremental Loans)~~Administrative Agent, ~~shall not exceed 2.75:1.00, (iii)~~ the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments Swingline Lender and the ~~Incremental Term Loans~~ Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Credit Loans ~~thereunder shall comply with Section 2.25(c)~~or Revolving Credit Commitments, as applicable, to such Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be ~~established pursuant~~ on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the weighted average life to ~~an amendment~~ maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (~~an “Incremental Assumption Agreement”~~without giving effect to prepayments) ~~relating to this Agreement. The terms~~ of the ~~Incremental~~ Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the ~~Incremental~~ Lenders thereunder; provided that clauses (i) and (ii) shall not apply to up to $90,000,000 of New Term ~~Lenders~~ Loans as elected by the Borrower; provided, further, that with respect to any New Term Loan, only during the period commencing on the Closing Date and ending on the day before the date that is 18 months after the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans, respectively, in respect of the Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50%. (e) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be identical to the Class of Commitments and related Revolving Credit Loans subject to increase by such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. The terms and provisions of the Additional Revolving Credit Loans and Additional Revolving Credit Commitments of any Series shall be on terms and documentation set forth in the ~~applicable Incremental Assumption Agreement~~Joinder Agreement as determined by the Borrower; provided that (i) the ~~final~~ applicable maturity date for the Additional Revolving Credit Commitment of ~~any Incremental Term Loans~~ each Series shall be no earlier than the ~~Latest~~ Revolving Credit Maturity Date, ; (ii) the ~~average life~~ pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to ~~maturity of the Incremental Term~~ any Additional Revolving Credit Loans shall be ~~no shorter than~~ determined by the ~~remaining average life to maturity of any then-outstanding Class of Term Loans,~~ Borrower and the Lenders thereunder; and (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment~~ borrowing and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein repayment (except ~~as set forth in clause~~ for (i1) ~~through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any~~ payments of interest and fees at different rates on Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Additional Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans ~~thereunder)~~with respect to Additional Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date. (df) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section ~~2.25~~2.14. (i) The Borrower may at any time, ~~including~~ and from time to time, request that all or a portion of the Term Loans of any ~~amendments necessary to establish the Incremental~~ Class (an “Existing Term Loan ~~Commitments and Incremental~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans ~~as a new Class or tranche of~~ (any such Term Loans which have been so converted, “Extended Term Loans”) and ~~such~~ to provide for other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section ~~2.25~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (eii) ~~Upon~~ The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any Incremental Revolving Credit Commitments, each ~~increase~~ existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(g)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms to be agreed between the Borrower and the Lender providing Extended Revolving Credit Commitments; provided, however, (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolving Credit Commitments may be optionally permanently prepaid and terminated prior to the date on which the Specified Existing Revolving Credit Commitments from which they were converted is permanently repaid in full and terminated, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to ~~this Section ‎2.25, each~~ any Extension Request. Any Extended Revolving Credit ~~Lender with~~ Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit ~~Commitment immediately prior to~~ Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such ~~increase will automatically and without further act be deemed~~ date). (iii) Any Lender (an “Extending Lender”) wishing to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, all or a portion of ~~such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that~~its Term Loans, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.Incrementa

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower may, by written notice to Administrative Agent, elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount, when taken together with the principal amount of Permitted Other Indebtedness outstanding at such time pursuant to Section 10.1(x)(i), not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable (or, in connection with a Limited Condition Transaction, at the time of such Increased Amount Date or, if earlier, at the time a definitive agreement is entered into in respect of such Limited Condition Transaction, there is no Event of Default under Section 11.1 or Section 11.5) and (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from ~~time to time~~each of the Lenders with Revolving Credit Commitments of such Class, ~~request Incremental Commitments~~ at the principal amount thereof, such interests in ~~an amount~~ the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect ~~thereto~~to all such assignments and purchases, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date Revolving Credit Loans of such ~~notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental~~ Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments ~~or Incremental Term Loan Commitments and (iv) in the case~~ of ~~any request for Incremental Term Loan Commitments, whether~~ such ~~Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding~~ Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the ~~Total Leverage Ratio~~New Revolving Loan Lenders, ~~determined on~~ the “Incremental Revolving Loan Lenders”) shall become a ~~Pro Forma Basis (assuming~~ Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that ~~all Incremental Commitments have been fully funded and without netting~~ the ~~proceeds of any Incremental Loans)~~Administrative Agent, ~~shall not exceed 2.75:1.00, (iii)~~ the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments Swingline Lender and the ~~Incremental Term Loans~~ Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Credit Loans ~~thereunder shall comply with Section 2.25(c)~~or Revolving Credit Commitments, as applicable, to such Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be ~~established pursuant~~ on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the weighted average life to ~~an amendment~~ maturity of all New Term Loans shall be no shorter than the weighted average life to maturity (~~an “Incremental Assumption Agreement”~~without giving effect to prepayments) ~~relating to this Agreement. The terms~~ of the ~~Incremental~~ Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the ~~Incremental~~ Lenders thereunder; provided that clauses (i) and (ii) shall not apply to up to $90,000,000 of New Term ~~Lenders~~ Loans as elected by the Borrower; provided, further, that with respect to any New Term Loan, only during the period commencing on the Closing Date and ending on the day before the date that is 18 months after the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans, respectively, in respect of the Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50%. (e) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be identical to the Class of Commitments and related Revolving Credit Loans subject to increase by such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. The terms and provisions of the Additional Revolving Credit Loans and Additional Revolving Credit Commitments of any Series shall be on terms and documentation set forth in the ~~applicable Incremental Assumption Agreement~~Joinder Agreement as determined by the Borrower; provided that (i) the ~~final~~ applicable maturity date for the Additional Revolving Credit Commitment of ~~any Incremental Term Loans~~ each Series shall be no earlier than the ~~Latest~~ Revolving Credit Maturity Date, ; (ii) the ~~average life~~ pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to ~~maturity of the Incremental Term~~ any Additional Revolving Credit Loans shall be ~~no shorter than~~ determined by the ~~remaining average life to maturity of any then-outstanding Class of Term Loans,~~ Borrower and the Lenders thereunder; and (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment~~ borrowing and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein repayment (except ~~as set forth in clause~~ for (i1) ~~through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any~~ payments of interest and fees at different rates on Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Additional Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans ~~thereunder)~~with respect to Additional Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date. (df) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section ~~2.25~~2.14. (i) The Borrower may at any time, ~~including~~ and from time to time, request that all or a portion of the Term Loans of any ~~amendments necessary to establish the Incremental~~ Class (an “Existing Term Loan ~~Commitments and Incremental~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans ~~as a new Class or tranche of~~ (any such Term Loans which have been so converted, “Extended Term Loans”) and ~~such~~ to provide for other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section ~~2.25~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be on terms to be agreed between the Borrower and the Lender providing such Extended Term Loan; provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (eii) ~~Upon~~ The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any Incremental Revolving Credit Commitments, each ~~increase~~ existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(g)(ii). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which shall be on terms to be agreed between the Borrower and the Lender providing Extended Revolving Credit (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the applicable Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitments”) and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment Notwithstanding anything to the contrary in this Section 2.14 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) no Extended Revolving Credit Commitments may be optionally permanently prepaid and terminated prior to the date on which the Specified Existing Revolving Credit Commitments from which they were converted is permanently repaid in full and terminated, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to ~~this Section ‎2.25, each~~ any Extension Request. Any Extended Revolving Credit ~~Lender with~~ Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit ~~Commitment immediately prior to~~ Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such ~~increase will automatically and without further act be deemed~~ date). (iii) Any Lender (an “Extending Lender”) wishing to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, all or a portion of ~~such existing~~ its Term Loans, Revolving Credit ~~Lender’s participations hereunder in outstanding Letters of Credit such that~~Commitments, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.or

Appears in 2 contracts

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

Incremental Facilities. (a) The Lead Borrower ~~may~~may at any time or from time to time after the Effective Date, by ~~written~~ notice to the Administrative ~~Agent from time to time~~Agent, request one or more additional tranches of term loans (which may take the form of an increase in the principal amount of any existing tranche of Term A-1 Loans (but not, for the avoidance of doubt, the Term A-2 Loans)) (the “Incremental ~~Commitments~~ Term Loans”) or increases in ~~an amount such that, after giving effect thereto,~~ the aggregate amount of Revolving Commitments (each such increase a “Incremental Revolving Commitment”; Incremental Term Loans and Incremental Revolving Commitments ~~established at or prior~~ are collectively referred to ~~such time does not exceed $100,000,000. Such notice shall set forth~~ 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 ~~amount~~ proposed date of the making of such Incremental ~~Commitments being requested~~ Term Loans or the effectiveness of such Incremental Revolving Commitments, as applicable, (~~which~~ A) the conditions set forth in clauses (a) and (b) of Section 4.02 shall be ~~in minimum increments of $500,000~~ satisfied or waived by the Required Lenders and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall ~~agree)), (iii) whether~~ have received a certificate on behalf of the Lead Borrower to that effect dated such ~~Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ date and executed by a Financial Officer of the Lead Borrower and (ivB) 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 ~~request for~~ Incremental ~~Term Loan Commitments~~Facilities the proceeds of which are to be used to finance a Limited Condition Transaction permitted hereunder, ~~whether~~ to the extent agreed by the Lenders providing such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders Facilities, (~~each~~ I) the representations and warranties the accuracy of which ~~shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be~~ are a condition ~~precedent~~ to the ~~effectiveness~~ funding of ~~any~~ such Incremental ~~Commitment~~ 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 (iII) (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 ~~immediately~~ 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 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 remaining availability hereunder as set forth above. Each such notice shall specify (A) 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 (B) the amount of the Incremental Revolving Commitments or Incremental Term Loans, as applicable, being requested. (b) 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 pursuant to documentation applicable to the existing Revolving Commitments. The Incremental Term Loans (i) if made as an increase in the principal amount of any existing tranche of Term Loans, shall have terms identical to those applicable to such Term Loans, (ii) shall rank pari passu or junior in right of payment with the Revolving Loans, (iii) shall not mature earlier than the 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 ~~immediately~~ 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 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 Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental ~~Commitments, (ii~~Revolving 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) and of the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ effectiveness of any Incremental ~~Loans)~~Facility, ~~shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and~~ in each ~~other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as~~ case advising the Lenders of the ~~date such Incremental Commitments become effective (or if such representation and warranty relates to another date~~details thereof and, ~~such other date) and (iv)~~ in the ~~terms~~ case of ~~such Incremental Commitments and the Incremental Term Loans or~~ effectiveness of any Incremental Revolving ~~Loans thereunder shall comply with~~ Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to this Section ~~2.25(c~~2.20(a). (c) Incremental ~~Commitments shall~~ Facilities may be ~~established pursuant to an amendment~~ provided by any existing Lender (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that no existing Lender shall have (ix) ~~the final maturity date~~ an obligation to provide all or any portion of any Incremental ~~Term Loans shall be no earlier than the Latest Maturity Date,~~ Facility unless it so agrees in writing as provided in this Section 2.20 or (iiy) the ~~average life~~ right to ~~maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity~~ provide all or any portion of any ~~then-outstanding Class of Term Loans~~Incremental Facility) or by other bank, financial institution or other institutional lender or investor (~~iii~~other than an Ineligible Institution) ~~the Incremental Term Loans will rank pari passu with~~ (any such other bank, financial institution or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points other institutional lender or investor being ~~referred to herein as the~~ called an “~~Yield Differential~~Additional Lender”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower; provided that, the Administrative Agent and ~~each applicable Incremental~~ the Swingline Lender shall ~~execute and deliver~~ have consented (such consent not to ~~the Administrative Agent an Incremental Assumption Agreement~~ be unreasonably withheld) to such Lender or Additional Lender providing ~~for~~ such Incremental ~~Commitments~~Facility, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent ~~reasonably requested~~ 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 or the other parties to such Incremental Assumption Agreement~~Agent. The ~~Administrative Agent shall promptly notify each Lender as to the effectiveness of each~~ Incremental ~~Assumption Agreement. Any Incremental Assumption Agreement~~ Amendment may, without the consent of any other ~~Lender~~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 Lead Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section ~~2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans~~ 4.02 and such other ~~technical amendments~~ conditions as ~~may be necessary or appropriate in~~ the ~~reasonable opinion~~ parties thereto shall agree. The Lead Borrower will use the proceeds of the ~~Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with~~ Incremental Facilities for any purpose not prohibited by this ~~Section 2.25~~Agreement. (ed) ~~Upon each increase~~ This Section 2.20 shall supersede any provisions in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender2.18(d) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect or Section 9.02 to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 2 contracts

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

Incremental Facilities. (a) ~~The~~ Pursuant to the terms and subject to the conditions hereof, after the Eighth Amendment Effective Date, the Borrower ~~may~~may request, from any Lender or any New Lender, with at least 10 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice to the Administrative Agent, (i) new term loans under one or more new term loan credit facilities to be included in this Agreement (the “New Term Loan”) and/or (ii) increases in the amount of Revolving Commitments (any such new commitments, collectively, the “New Revolving Commitments” and, any loans made thereunder, the “New Revolving Loans”, together with the New Term Loans, the “New Loans”), the proceeds of which, in each case, may be used for general corporate purposes (such increase of the outstanding principal amount of the Loans or Commitments, a “Facility Increase”). (b) The terms of such New Term Loans, the New Revolving Commitments or New Revolving Loans, as the case may be, shall be determined by the Borrower and the applicable Lenders or New Lenders providing such New Loans or New Revolving Commitments; provided, that: (i) such New Term Loans shall (A) have a final maturity no earlier than the Latest Maturity Date and a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of any existing Series of Term Loans; (B) have Applicable Rates and amortization schedules determined by the Borrower and the Lenders or New Lenders with respect thereto; and (C) otherwise be on terms, to the extent not identical to the terms of the initial Term Loans, reasonably satisfactory to the Administrative Agent ~~from~~ and the Borrower; and (ii) such New Revolving Commitments and New Revolving Loans shall be identical to the Revolving Commitments and the Revolving Loans. (c) In connection with any Facility Increase after the Twelfth Amendment Effective Date, such Facility Increase (when aggregated with any outstanding New Loans or New Revolving Commitments), together with the aggregate amount of all Incremental Equivalent Debt incurred under Section 2.18(h), shall not exceed, at the time of incurrence thereof, the sum of (the amount available under clause (A) through (C) below, the “Available Incremental Amount”) (A) an amount equal to ~~time~~the greater of (x) $400,000,000 and (y) 100% of Consolidated Adjusted EBITDA for the most recently ended Measurement Period for which financial statements have been delivered, ~~request Incremental Commitments in~~ plus (B) the aggregate amount of any permanent optional reductions of the Revolving Commitments, plus (C) an unlimited amount such that, after giving effect ~~thereto,~~ to the ~~aggregate~~ incurrence of such amount ~~of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested~~ (which shall be ~~in minimum increments~~ deemed to include the full amount of ~~$500,000~~ any Facility Increase being implemented at such time assuming that the full amount of such Facility Increase had been drawn), the Total Net Leverage Ratio would not exceed 2.5 to 1.0 for the most recently ended Measurement Period for which financial statements have been delivered and calculated on a pro forma basis (but calculating the Total Net Leverage Ratio without netting the cash proceeds from such Loans, and without giving effect to any substantially simultaneous incurrence of Indebtedness made pursuant to clauses (A) or (B) of this Section 2.18(c) or clause (A) of Section 6.01(c)); provided, that each request for New Loans or New Revolving Commitments shall be for a minimum amount of the lesser of (x) $~~5,000,000~~5,000,000 and (y) the entire amount that may be requested under this Section 2.18(c) provided further that the Borrower may elect to use clause (C) of the Available Incremental Amount prior to using clauses (A) or (B) of the Available Incremental Amount, and if both clause (C) and clauses (A) or (B) of the Available Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (C) of the Available Incremental Amount first. (d) The terms of any New Loans shall be established pursuant to an amendment to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each applicable Lender or New Lender providing such New Loans and the Administrative Agent (each such amendment, an “Incremental Amendment”). Each such Incremental Amendment and all other documentation in respect of such New Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower. The Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) of such Incremental Amendment, which shall be promptly notified to the Lenders. Upon the Incremental Effective Date, each applicable Lender or New Lender providing any Incremental Loan shall become a “Lender”, and such Incremental Loan shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower and Administrative Agent shall agree to such procedures, if any, as are necessary to accomplish the purposes of this Section 2.18. (e) No Lender shall be obligated to provide any New Loans unless it so agrees in its sole discretion. The Administrative Agent may elect or decline to arrange any New Loans in its sole discretion. (f) The repayment (other than in connection with a scheduled repayment or a repayment at maturity) and the prepayment of any New Term Loans shall be made on a pro rata basis with all other outstanding Term Loans and the repayment (other than in connection with a repayment at maturity) and the prepayment of any New Revolving Loans shall be made on a pro rata basis with all other outstanding Revolving Loans; provided, that if the applicable Lenders providing such New Loans so agree, such Lenders may participate on a less than pro rata basis in any repayment or prepayment hereunder. On any Incremental Effective Date, subject to the satisfaction of the terms and conditions set forth in this Section 2.18, (i) each of the existing Revolving Lenders shall assign to each of the New Revolving Lenders, and each of the New Revolving Lenders shall purchase from each of the existing Revolving Lenders, at the principal amount thereof (together with accrued interest), ~~(ii)~~ such interests in the ~~date~~ New Revolving Commitments outstanding on ~~which~~ such Incremental Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Commitments ~~are requested~~ will be held by existing Revolving Lenders and New Revolving Lenders ratably after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments. (g) No Incremental Amendment shall become effective unless all of the following conditions are met: (~~which shall not be less than 10 Business Days nor more than 60 days after~~ i) Each of the conditions precedent set forth in Section 4.02 are satisfied as of the date of such ~~notice~~ Incremental Amendment (~~or such longer or shorter period~~ including the condition that as of the ~~Administrative Agent shall agree)), (iii) whether~~ date of such Incremental ~~Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments~~Amendment, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no ~~Default or Event of Default~~ event shall have occurred and be continuing ~~immediately prior~~ or would result from the consummation of such Incremental Amendment that would constitute a Default or an Event of Default (provided that, with respect to any New Loans the primary purpose of which is to finance a Limited Condition Transaction, the requirement pursuant to this Section 2.18(g)(i) shall be that no Event of Default under clauses (a) or ~~immediately~~ (b) of Article VII or, solely with respect to the Borrower, clauses (h) or (i) of Article VII, shall exist after giving effect to such ~~Incremental Commitments,~~ New Loans); (ii) each Incremental Amendment shall contain a representation and warranty by the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming~~ Borrower that ~~all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties ~~set forth~~ of (A) the Borrower contained in Article ~~III~~ 3 and (B) each Loan Party contained in each other Loan Document ~~shall be~~ or in any document furnished at any time under or in connection herewith or therewith are true and correct in all material respects (~~or in all respects, if qualified as to materiality~~without duplication of any materiality qualifier contained therein) on and as of the effective date ~~such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms~~ of such Incremental ~~Commitments~~ Amendment, except to the extent that such representations and ~~the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments~~ warranties specifically refer to an earlier date, in which case they shall be ~~established pursuant~~ true and correct as of such earlier date (provided that, with respect to ~~an amendment (an “Incremental Assumption Agreement”) relating~~ any New Loans the primary purpose of which is to ~~this Agreement. The terms~~ finance a Limited Condition Transaction, the only representations and warranties, the breach or inaccuracy of ~~the Incremental Term Loans~~ which shall be a condition to funding, shall be customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the ~~Borrower and the Incremental Term~~ Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term providing such New Loans, ))); (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to)~~ Loan Parties shall reaffirm their respective obligations under the ~~Tranche B Term Loans in right of payment and with respect~~ Collateral Documents pursuant to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be an agreement reasonably satisfactory to the Administrative Agent~~. Any~~ ; (iv) if requested by the Administrative Agent, constituent documents of the Loan Parties, resolutions (or equivalent authorization) of each Loan Party’s board of directors (or equivalent body) or shareholders (or equivalent), as applicable, approving such Incremental ~~Revolving Credit Commitment (~~Amendment shall be delivered to the Administrative Agent and an opinion or opinions of counsel reasonably satisfactory to the Administrative Agent as to the enforceability of the Incremental ~~Revolving Loans thereunder~~Amendment, this Agreement as amended thereby and such of the other Loan Documents (if any) ~~shall~~ as may be ~~implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder).~~amended thereby; and (dv) ~~In connection with any Incremental Commitments,~~ the Borrower, the Administrative Agent and each applicable ~~Incremental~~ Lender shall execute and deliver to the Administrative Agent ~~an Incremental Assumption Agreement providing for such Incremental Commitments, and such other~~ any documentation as the Administrative Agent shall reasonably specify to evidence the transaction contemplated by such Incremental ~~Commitment~~ Amendment (h) The Borrower may utilize the Available Incremental Amount in respect of ~~each~~ one or more series of senior unsecured notes or term loans, issued in a public offering, Rule 144A or other private placement or loan origination pursuant to an indenture, credit agreement or otherwise, in an aggregate amount not to exceed, together with the aggregate amount of all Facility Increases, the Available Incremental ~~Lender~~Amount (“Incremental Equivalent Debt”); provided that such Incremental Equivalent Debt (i) does not have a final maturity date earlier than the latest then applicable Maturity Date (as determined as of the date of incurrence of such Incremental Equivalent Debt), or a shorter weighted average life to maturity than the weighted average life to maturity of the Commitments outstanding at such time, (ii) has terms and conditions (other than pricing (including interest rates, rate floors or original issue discount) and fees and, solely with respect to any term loans, amortization and prepayment premiums) no more restrictive than those under the credit facilities provided for herein (except for covenants or other provisions which are provided to the Lenders or are applicable only to periods after the latest then applicable Maturity Date (as determined in good faith by the Borrower as of the date of incurrence of such Incremental Equivalent Debt)), (iii) to the extent guaranteed, shall not be guaranteed by any Person other than the Loan Parties, and (iv) after giving effect to any such Incremental Equivalent Debt and the use of proceeds thereof, the Borrower shall be in compliance with the financial covenant set forth in Section 6.08 on a pro forma basis. ~~Any~~ To the extent the Borrower provides first lien security for the benefit of all Lenders, the Borrower may utilize the Available Incremental ~~Assumption Agreement may include conditions for delivery~~ Amount in respect of ~~opinions~~ one or more series of ~~counsel and~~ senior secured first lien notes or term loans or senior secured junior lien notes or term loans, issued in a public offering, Rule 144A or other ~~documentation consistent with~~ private placement or loan origination pursuant to an indenture, credit agreement or otherwise, so long as the conditions set forth in ~~Section 4.02~~the previous sentence are satisfied and (i) such notes or term loans are not secured by any asset that does not also secure the Obligations hereunder on a pari passu basis with liens securing such notes or term loans, ~~all~~ and (ii) such notes or term loans shall be subject to customary intercreditor arrangements reasonably satisfactory to the ~~extent reasonably requested by~~ Borrower and the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25Agent. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

Sources: Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.), Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.)

Incremental Facilities. (a) ~~The~~ From time to time, the Borrower ~~may,~~ may by written notice to ~~the~~ Administrative Agent ~~from time to time~~request the establishment of one or more Incremental Term Loan Commitments, ~~request Incremental Commitments~~ in ~~an amount such that~~each case, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in ~~minimum increments of $500,000 and~~ a minimum amount of $~~5,000,000)~~1,000,000 and integral multiples of $500,000 in excess thereof, and in an aggregate amount of all such Commitments not to exceed $2,500,000 during the term of this Agreement. Each such notice shall (iix) specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to the Administrative Agent and (y) include an outline, in reasonable detail, of the proposed use of proceeds of such Incremental ~~Commitments are requested~~ Term Loans, which such proposed use shall be subject to ~~become effective~~ the approval of the Administrative Agent in its sole discretion. Upon receipt of such notice, and in any event within five (~~which shall not be less than 10~~ 5) Business Days ~~nor more than 60 days after the date of such notice (or such longer or shorter period as~~ thereafter, the Administrative Agent shall ~~agree)), (iii) whether such Incremental Commitments~~ advise the Borrower if the proposed use of proceeds are ~~Incremental Revolving Credit Commitments or~~ acceptable to the Administrative Agent and shall promptly notify the Lenders holding Term Loans of the requested increase and each Lender holding Term Loans shall have the right to commit to the Incremental Term Loan Commitments in proportion to its Pro Rata Share of the Term Loans outstanding immediately before giving effect to such Incremental Term Loans. Each Lender holding Term Loans shall notify the Administrative Agent within five (5) Business Days following such notice from the Administrative Agent, if and ~~(iv) in~~ to what extent, such Lender holding Term Loans commits to the ~~case of any request for~~ requested Incremental Term Loan Commitments. Any Lender holding Term Loans not responding within such period shall be deemed to have declined to provide an Incremental Term Loan Commitment. If a Lender holding Term Loans fails to so commit to the full requested Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate the Administrative Agent may, in its sole discretion) , arrange for one or more other lenders to provide such remainder of the requested Incremental Term Loan Commitments, which such other lenders may be existing Lenders or any ~~Additional Lender~~other Persons that are eligible assignees pursuant to Section 11.7. (b) It Such Incremental Term Loan Commitments shall ~~be a condition precedent to the effectiveness~~ become effective as of ~~any Incremental Commitment~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Term Loan Commitments, ; (ii) each of the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans),~~ conditions set forth in Section 5.2 shall ~~not exceed 2.75:1.00,~~ be satisfied; (iii) the ~~representations~~ Borrower and ~~warranties~~ its Subsidiaries shall be in compliance on a pro form basis with each of the covenants set forth in ~~Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and~~ Section 7.3 as of the ~~date~~ last day of the most recently ended Fiscal Quarter after giving effect to the funding of such Incremental ~~Commitments become effective (or~~ Term Loans, as if made on the last day of such ~~representation and warranty relates to another date, such other date) and~~ recently ended Fiscal Quarter; (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be ~~determined~~ effected pursuant to one or more amendment or joinder agreements (each, and “Incremental Amendment”) executed and delivered by the Loan Parties, the Agents and each Incremental Term Loan Lender, and each of which such Incremental Term Loans shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.9; (v) the Borrower shall deliver a certificate of an Authorized Officer certifying the proposed use of the proceeds the Incremental Term Loan, as approved by the Administrative Agent, and certifying that the conditions precedent to the making of such Incremental Term Loan under this Section 2.13 have been satisfied, and (vi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. In the event any Incremental Term Loans are not funded on the applicable Increased Amount Date, the Borrower shall make any payments required pursuant to Section 2.8(c) in connection with such Incremental Term Loan Commitments. In no event shall the provisions of this Section 2.13 or any other provision of this Agreement or any other Loan Document be deemed to create any obligation on the part of any Lender to agree to any increase in any Commitment and the Borrower and the other Loan Parties each agree that any such increase shall be at the sole option of each Lender. (c) On any Increased Amount Date on which any Incremental Term ~~Lenders~~ Loan Commitments of any tranche are effective, subject to the satisfaction of the foregoing terms and ~~set forth in the applicable Incremental Assumption Agreement; provided that~~ conditions, (i) each Incremental Term Loan Lender shall make an Incremental Term Loan to the ~~final~~ Borrower in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (d) The Incremental Term Loans and Incremental Term Loan Commitments shall be on the same terms and conditions as the Term Loans (including as to security) and such other terms and conditions as shall be agreed by the Incremental Term Loan Lenders and the Agents. The maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans Loan shall be the ~~same as the Borrower and Guarantors with respect to the~~ Term ~~Loans, (iv) if the All-in Yield on such~~ Loan Maturity Date. Each Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.13. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Synergy CHC Corp.), Term Loan Credit Agreement (Synergy CHC Corp.)

Incremental Facilities. ~~(a) The Borrower may~~On one or more occasions at any time after the Closing Date, the Borrowers may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request (A) an increase to the existing Revolving Commitments (any such increase, ~~request~~ the “Incremental Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”, together with the Incremental Revolving Commitments, the “Incremental Commitments”), in an aggregate amount not to exceed $750,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Revolving Borrowers or the Term Loan Borrowers, as applicable, propose that such Incremental Commitments ~~in an amount such that~~shall be effective, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than five (ii5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Revolving Borrowers or the Term Loan Borrowers, as applicable, to arrange a syndicate of Lenders willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments ~~are requested~~ on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to ~~become effective~~ provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and (z) any Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Revolving Borrowers or the Term Loan Borrowers, as applicable, and the Administrative Agent, and, if an Incremental Revolving Commitment, the Issuing Bank and the Swingline Lender (each of which approvals shall not be ~~less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)~~unreasonably withheld), ~~(iii) whether~~ unless such Incremental ~~Commitments are~~ Revolving Loan Lender or Incremental Term Loan Lender is an existing Lender. The terms and provisions of any Incremental Revolving ~~Credit~~ Commitments or shall be identical to the existing Revolving Commitments. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term Loans shall (iva) in provide that the ~~case~~ maturity date of any ~~request for~~ Incremental Term Loan ~~Commitments~~that is a separate tranche shall be no earlier than the Term Loan Maturity Date and shall not have any scheduled amortization payments, ~~whether~~ (b) share ratably in any prepayments of the existing Term Loan Facility, unless the Term Loan Borrowers and the Incremental Term Loan Lenders in respect of such Incremental Term ~~Loan Commitments are commitments~~ Loans elect lesser payments and (c) otherwise be identical to ~~make additional~~ the existing Term ~~Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~Loans. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment ~~that~~ shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall exist and (ii) as of the last day of the most recent month for which financial statements have ~~occurred and be continuing immediately prior~~ been delivered pursuant to ~~or immediately~~ Section 5.01, the Borrowers would have been in compliance with the Financial Covenants (after giving effect to ~~such Incremental Commitments, (ii)~~ any increase to the maximum Total Leverage ~~Ratio~~Ratio pursuant to Section 6.06(a) during a Total Leverage Ratio Increase Period, ~~determined on a Pro Forma Basis~~ if applicable) that are applicable at such time; (~~assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii~~y) the representations and warranties ~~set forth~~ made or deemed made by the Borrowers in ~~Article III and in each other~~ any Loan 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 (or in which case such representations and warranties shall have been true and correct in all ~~respects, if qualified as to materiality)~~ material respects on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (ivz) the ~~terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder~~ Administrative Agent shall ~~comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ have received each of the ~~Incremental Term Loans shall be determined by the Borrower~~ following, in form and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be substance reasonably satisfactory to the Administrative Agent~~. Any~~ : (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 ~~Revolving Credit Commitment~~ Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Subsidiary Guarantor authorizing the Subsidiary Guaranty by such Subsidiary Guarantor of such Incremental Commitments; and (ii) a customary opinion of counsel to the Borrowers and the ~~Incremental Revolving Loans thereunder) shall~~ Subsidiary Guarantors (which may be ~~implemented~~ in substantially the same form as ~~an increase~~ delivered on the Closing Date and may be delivered by internal counsel of the Borrowers), and addressed to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Revolving Borrowers or the Term Loan Borrowers, as applicable, payable to any new Lender, and replacement notes executed by the Revolving Borrowers or the Term Loan Borrowers, as applicable, payable to any existing Lenders. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each ~~applicable~~ 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 ~~execute~~ become a Lender with respect to its Incremental Revolving Commitment and ~~deliver~~ all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the ~~Administrative Agent~~ satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender shall make a Loan to the applicable Term Loan Borrower (an “Incremental ~~Assumption Agreement providing for such~~ Term Loan”) in an amount equal to its Incremental ~~Commitments~~Term Loan Commitment, and ~~such other documentation as the Administrative Agent~~ (ii) each Incremental Term Loan Lender shall ~~reasonably specify~~ become a Lender hereunder with respect to ~~evidence~~ the Incremental Term Loan Commitment ~~of each~~ and the Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption AgreementTerm Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly ~~notify~~ upon receipt of a Borrower’s notice of each ~~Lender~~ Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the 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, in each case subject to the ~~effectiveness~~ assignments contemplated by this Section. The upfront fees payable to the Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders shall be determined by the Revolving Borrowers or the Term Loan Borrowers, as applicable, and the applicable Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders. The Incremental Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Revolving Borrowers or the Term Loan Borrowers, as applicable, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of ~~each Incremental Assumption Agreement~~which shall be recorded in the Register. ~~Any Incremental Assumption Agreement~~ Each Additional Credit Extension Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.04. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request ~~Incremental Commitments in an amount such that, after giving effect thereto~~(i) during the Revolving Availability Period, the ~~aggregate amount~~ establishment of Incremental Revolving Commitments ~~established at or prior to~~ and/or (ii) the establishment of Incremental Term Loan Commitments. Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ 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, and (B) the amount of the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative 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 ~~minimum increments~~ reliance on such clause (A)); provided that, for the avoidance of ~~$500,000~~ doubt, Incremental Revolving Commitments and/or Incremental Term Loan Commitments may be incurred pursuant to this clause (B) prior to utilization of the amount set forth in clause (A) of this sentence. (b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments, Revolving Loans and other extensions of credit made thereunder, and shall be treated as a ~~minimum amount~~ single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the latest of ~~$5,000,000~~the latest Maturity Date hereunder or any other then existing Incremental Term Loan Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall have a Weighted Average Life to Maturity that is no shorter than the ~~date on which such Incremental Commitments are requested~~ Weighted Average Life to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ Maturity of ~~such notice (or such longer or shorter period as the Administrative Agent shall agree))~~any other then existing Term Loans, (iii) ~~whether~~ shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the then existing Term Loans and (iv) shall have the same Guarantees as and shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Revolving Loans and the then existing Term Loans (except in the case of clause (iii) and (iv) to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the latest Maturity Date hereunder may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date hereunder and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans and the then existing Term Loans. Any Incremental Term Loan Commitments ~~are~~ established pursuant to an Incremental ~~Revolving Credit Commitments or~~ 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 ~~(iv)~~ Incremental Term Loans for all purposes of this Agreement. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the ~~case~~ part of any ~~request for~~ Lender to increase its Revolving Commitment hereunder, or provide Incremental Term ~~Loan Commitments~~Loans, ~~whether~~ at any time. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental ~~Term Loan~~ Commitments ~~are commitments~~ and the Administrative Agent; provided that (other than with respect to ~~make additional~~ the incurrence of Incremental Term Loans ~~of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each~~ the proceeds of which shall be ~~entitled~~ used to ~~agree or decline~~ 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 ~~participate in its sole discretion~~which conditions (i) ~~or any Additional Lender.~~through (iii) below shall not apply) no Incremental Commitments shall become effective unless: ~~(b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that~~ (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to or and immediately after giving effect (including pro forma effect) to such Incremental ~~Commitments,~~ Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date; (ii) on the ~~Total Leverage Ratio~~date of effectiveness thereof, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties of each Loan Party set forth in ~~Article III and in each other~~ the Loan ~~Document~~ Documents shall be true and correct in all material respects (or, if qualified by materiality or “Material Adverse Effect”, in all respects~~, if qualified as to materiality~~) on and as of ~~the date~~ such ~~Incremental Commitments become effective~~ date; (~~or if such representation and warranty relates~~ iii) after giving effect to ~~another date, such other date) and (iv) the terms of~~ such Incremental Commitments and the ~~Incremental Term~~ making of Loans or and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving ~~Loans thereunder~~ Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn but excluding the proceeds of any such Incremental Commitments for purposes of netting cash and Permitted Investments in the calculation of the Total Net Leverage Ratio), the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11; (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section; (v) the Administrative Agent shall have received documents and opinions consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrower hereunder after giving effect to such increase; (vi) any new Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Incremental Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with ~~Section 2.25(c).~~“know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and (cvii) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of~~ the ~~Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and~~ other conditions, if any, set forth in the applicable Incremental ~~Assumption Agreement~~Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h), (i) or (j) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the ~~final maturity~~ 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 ~~any Incremental Term Loans shall be no earlier than~~ execution of the ~~Latest Maturity Date~~applicable Limited Conditionality Acquisition Agreement by the parties thereto, (ii4) ~~the average life to maturity~~ as of the date of the borrowing of such Incremental ~~Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of~~ Term Loans, customary “Sungard” representations and warranties (~~iii)~~ with such representations and warranties to be reasonably determined by the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on Lenders providing such Incremental Term ~~Loans exceeds~~ Loans) shall be true and correct in all material respects (or, in the ~~initial All-~~case of any representation or warranty qualified by materiality or Material Adverse Effect, in ~~Yield of~~ all respects) immediately prior to, and after giving effect to, the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making incurrence of such Incremental Term Loans and (v5) ~~to the extent the terms~~ as of the ~~Incremental Term Loans are inconsistent~~ date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall be in pro forma compliance with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions financial covenants set forth in Section ~~4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such~~ 6.11. Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent, to give effect to the provisions of this Section and no consent of any Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20. (d) 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, ~~to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments~~ and ~~Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate~~ (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Commitments, each ~~Revolving Credit~~ Lender with a Revolving ~~Credit~~ Commitment (immediately prior to giving effect to such ~~increase will automatically and without further act be deemed to have assigned~~ Incremental Revolving Commitments) shall assign to each Incremental Revolving ~~Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Revolving Commitment, and each such Incremental Revolving ~~Credit~~ Lender ~~will automatically~~ shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each~~ all the Lenders with Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Credit~~ 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 ~~be prepaid~~ 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. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Borrower referred to in paragraph (a) above and of ~~additional~~ 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 ~~Loans made hereunder so that~~ Commitments, of the ~~Revolving Loans are thereafter held by~~ Applicable Percentages of the ~~Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the assignments required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~paragraph (e) above.

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable (unless, in connection with an acquisition or investment subject to customary “Sungard” or “certain funds” conditionality, otherwise agreed to by the Lenders providing such Incremental Loans), as applicable, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). 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. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from ~~time to time~~each of the Lenders with Revolving Credit Commitments of such Class, ~~request Incremental Commitments~~ at the principal amount thereof, such interests in ~~an amount~~ the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect ~~thereto~~to all such assignments and purchases, the ~~aggregate amount~~ Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental ~~Commitments established at~~ Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or ~~prior~~ delayed) to such ~~time does not exceed $100,000,000. Such notice~~ Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the ~~amount~~ applicable New Term Loan Maturity Date of ~~the Incremental Commitments being requested (which~~ each Series shall be ~~in minimum increments of $500,000 and a minimum amount of $5,000,000),~~ no earlier than the Initial Term Loan Maturity Date; (ii) the ~~date on which such Incremental Commitments are requested~~ weighted average life to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ maturity of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional all New Term Loans ~~of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which~~ shall be ~~entitled~~ no shorter than the weighted average life to ~~agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to~~ maturity of the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Initial Term Loans~~), shall not exceed 2.75:1.00~~, (iii) the ~~representations~~ pricing, interest rate margins, discounts, premiums, rate floors, fees, and ~~warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as~~ amortization schedule applicable to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental any New Term Loans shall be determined by the Borrower and the ~~Incremental Term~~ Lenders ~~and set forth in the applicable Incremental Assumption Agreement~~thereunder; provided that ~~(i)~~ solely in the ~~final maturity date~~ case of ~~any Incremental~~ New Term Loans ~~shall be no earlier than~~ incurred prior to the ~~Latest Maturity~~ 18 month anniversary of the Closing Date, ~~(ii)~~ if the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Effective Yield for LIBOR Loans in ~~right~~ respect of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such ~~Incremental~~ New Term Loans exceeds the ~~initial All-~~Effective Yield for LIBOR Loans in ~~Yield~~ respect of the ~~Tranche B~~ Initial Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.50%, ~~then~~ the Applicable Margin for LIBOR Loans in respect of the ~~Tranche B~~ Initial Term Loans ~~shall automatically be increased by~~ is equal to the Effective Yield ~~Differential, effective upon~~ for LIBOR Loans in respect of the ~~making of such Incremental~~ New Term Loans minus 0.50%; and (viv) to the extent such terms and documentation are not consistent with the ~~terms of the Incremental~~ Initial Term Loans ~~are inconsistent with the terms set forth herein~~ (except ~~as set forth in~~ to the extent permitted by clause (i), (ii) ~~through~~ or (iviii) above), ~~such terms~~ they shall be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment~~ Agent (~~and~~ it being understood that, (1) to the ~~Incremental Revolving Loans thereunder)~~ extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be ~~implemented as an increase to~~ required by the ~~Total~~ Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be ~~on terms~~ identical to the ~~existing~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans ~~thereunder~~with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrower and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (df) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section ~~2.25, including~~ 2.14. (i) The Borrower may at any ~~amendments necessary~~ time and from time to ~~establish~~ time request that all or a portion of the ~~Incremental~~ Term Loans of any Class (an “Existing Term Loan ~~Commitments and Incremental~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans ~~as a new Class or tranche of~~ (any such Term Loans which have been so converted, “Extended Term Loans”) and ~~such~~ to provide for other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section ~~2.25~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (eii) ~~Upon each increase in~~ The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments ~~pursuant to this Section ‎2.25~~of any Class, ~~each~~ any Extended Revolving Credit ~~Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each~~ Commitments and/or any Incremental Revolving Credit ~~Lender in respect~~ Commitments, each existing at the time of such ~~increase~~request (each, ~~and each such Incremental~~ an “Existing Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid Commitment” and any ~~costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing~~related revolving credit loans thereunder, ~~pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.~~“

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of one or more (x) additional term loans, ~~request~~ which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments ~~in an amount such that, after giving effect~~ (the commitments thereto, the ~~aggregate amount~~ “New Revolving Credit Commitments”) or a separate Class of ~~Incremental~~ Revolving Credit Commitments ~~established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (i) the ~~amount of~~ commitments thereto, the ~~Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~“Additional Revolving Credit Commitments” and, ~~(ii)~~ together with the ~~date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ New Revolving Credit Commitments, the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are~~ “Incremental Revolving Credit ~~Commitments or~~ Commitments”; together with the Incremental Term Loan Commitments and the Incremental Term C Loan Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the ~~case~~ Maximum Incremental Facilities Amount at the time of ~~any request for~~ incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental ~~Term Loan Commitments~~Facilities Amount at such time). Each such notice shall specify the date (each, ~~whether such~~ an “Increased Amount Date”) on which the Borrower proposes that the Incremental ~~Term~~ Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~shall be effective. The Borrower may ~~seek~~ approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments ~~from existing Lenders (each of which shall be entitled to agree~~ may elect or ~~decline to participate~~ decline, in its sole discretion~~) or~~ , to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any ~~Additional Lender. (b) It shall be a condition precedent~~ existing Lender to ~~the effectiveness of~~ provide any Incremental ~~Commitment that~~ Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing~~ exist on such Increased Amount Date immediately ~~prior to~~ before or immediately after giving effect to such Incremental ~~Commitments~~Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ in connection with any incurrence of ~~any~~ Incremental Loans), or establishment of Incremental Loan Commitments, on an Increased Amount Date, there shall ~~not exceed 2.75:1.00, (iii)~~ be no requirement for the Borrower to bring down the representations and warranties ~~set forth~~ under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, in ~~Article III and in each~~ the case of Incremental Loans or Incremental Loan Commitments used to finance a Permitted Acquisition or other ~~Loan Document~~ acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall be required to be true and correct in all material respects ~~(or in all respects,~~ if ~~qualified as to materiality) on and as~~ requested by the Persons holding more than 50% of the ~~date such~~ applicable Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term~~ Loans or Incremental ~~Revolving Loans thereunder shall comply with Section 2.25(c~~Loan Commitments). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ Loan Commitments shall be ~~the same as~~ effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment (~~, and ~~the Incremental Revolving Loans thereunder)~~ each of which shall be ~~implemented as an increase to~~ recorded in the ~~Total Revolving Credit Commitments~~ Register and shall be ~~on terms identical~~ subject to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions requirements set forth in Section ~~4.02~~5.4(e), all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the ~~establishment of such new Class or tranche~~Incremental Loan Commitments, ~~in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit~~ as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section ~~‎2.25~~2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit ~~Lender~~ Lenders with a an existing Revolving Credit Commitment ~~immediately prior to~~ of the Class being increased by such ~~increase will~~ New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each ~~Incremental~~ Revolving Credit Lender ~~in respect~~ with a New Revolving Credit Commitment of such ~~increase~~Class (each, a “New Revolving Loan Lender”), and each of such ~~Incremental~~ New Revolving ~~Credit Lender will~~ Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such ~~existing~~ Revolving Credit ~~Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding Revolving Letters of ~~Credit such that~~Credit, so that after giving effect to each such deemed assignment and assumption ~~of participations~~and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such ~~Incremental~~ New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit ~~Lender) will equal its~~ Commitments of all Revolving Credit ~~Percentage. If~~Lenders under the Credit Facilities, on and (ii) at the ~~date of such increase, there are any Revolving Loans outstanding~~principal amount thereof, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by interests in the Revolving Credit ~~Lenders according~~ Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to ~~their~~ all such assignments and assumptions, the Revolving Credit ~~Percentages (~~Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the ~~increase in~~ addition of such New Revolving Credit ~~Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any~~ Commitments to such existing Revolving Credit ~~Lender in accordance with Section 2.16. The~~ 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 this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the ~~immediately preceding sentence~~“Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date (x) on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term 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 and (y) on which any Incremental Term C Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans); (iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any Incremental Term Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 2018 Incremental Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be adjusted so that the Yield in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, is equal to the Yield i

Appears in 2 contracts

Sources: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Corp.)

Incremental Facilities. (a) ~~The~~ So long as no Event of Default under subsection 8.1(a) or (f) exists or would arise therefrom, the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Existing Tranche of Existing Revolving Commitments (the “Supplemental Revolving Commitments”), (iv) to request new commitments under one or more new revolving facilities to be included in ~~an amount such~~ this Agreement (the “Incremental Revolving Commitments”), and/or (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after giving effect thereto,~~ (i) the aggregate amount of Incremental Commitments ~~established~~ permitted pursuant to this subsection 2.9 shall not exceed, at ~~or prior~~ the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such ~~time does not exceed $100,000,000. Such notice shall set forth (i) the~~ Indebtedness), an amount ~~of the Incremental Commitments being requested (which shall~~ that could then be Incurred under this Agreement in ~~minimum increments of $500,000 and a minimum amount of $5,000,000~~compliance with subsection 7.1(b)(i), (ii) if any portion of an Incremental Commitment is to be Incurred in reliance on the ~~date on which such~~ Ratio Incremental ~~Commitments are requested~~ Facility, the Borrower shall have delivered a certificate to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative ~~Agent shall agree))~~Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) ~~whether~~ if any portion of an Incremental Commitment is to be Incurred in reliance on clause (ii) or (iii) of the definition of “Maximum Incremental Facilities Amount”, 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 ~~Commitments are~~ Commitment. Any Loans made in respect of any such Incremental ~~Revolving Credit Commitments or Incremental~~ Commitment (other than Supplemental Term Loan Commitments and ~~(iv~~Supplemental Revolving Commitments) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of shall be made by creating a new ~~Class~~Tranche. ~~The Borrower may seek~~ Each Incremental ~~Commitments from existing Lenders (each of which~~ Commitment made available pursuant to this subsection 2.9 shall be ~~entitled~~ in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to ~~agree or decline to participate~~ by the Administrative Agent in its ~~sole~~ reasonable discretion~~) or any Additional Lender~~). (b) It Each request from the Borrower pursuant to this subsection 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be ~~a condition precedent to~~ made by any existing Lender or by any other bank or financial institution (any such other bank or financial institution, an “Additional Incremental Lender”, and the ~~effectiveness of~~ Additional Incremental Lenders together with any ~~Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such~~ existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (iiin the case of a Supplemental Revolving Commitment) the ~~Total Leverage Ratio, determined on a Pro Forma Basis~~ consent of the Swing Line Lender or any Issuing Bank (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each ~~other Loan Document~~ case, such consent not to be unreasonably withheld, delayed or conditioned) shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)required. (c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit O-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall ~~be established~~ become commitments under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Commitment Amendment”) ~~relating~~ to this ~~Agreement~~Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. ~~The terms~~ Notwithstanding anything to the contrary herein or in any other Loan Document, an Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effectuate the provisions of this subsection 2.9 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any Tranche of then outstanding Term Loans; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be, at the Borrower’s option, secured on an equal and ratable basis or a junior basis by the same Collateral securing the Senior Credit Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to an Intercreditor Agreement) or be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank on an equal and ratable basis in right of payment with or (at the Borrower’s option) junior in right of payment to the Senior Credit Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Senior Credit Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Available Cash of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Events or from Excess Cash Flow, to the extent the Net Available Cash of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to subsection 3.4(c) or (d), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the Initial Revolving Maturity Date; (iv) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the ~~Incremental Term Lenders and set forth in the~~ applicable Incremental ~~Assumption Agreement~~Lenders; provided that ~~(i)~~ in the ~~final maturity~~ event that the applicable interest rate margins for any term loans made prior to the date of that is 12 months after the Effective Date that are secured on an equal and ratable basis by the same Collateral securing the Senior Credit Facility Obligations that are Incurred by the Borrower under any Incremental Term ~~Loans shall be no earlier~~ Loan Commitment or under 7.1(b)(i)(B) other than under an Incremental Term Loan Commitment are, in either case, higher than the ~~Latest Maturity Date, (ii)~~ applicable interest rate margin for the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Initial Term Loans by more than 50 basis ~~points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~points, then the Applicable Margin for the ~~Tranche B~~ Initial Term Loans shall ~~automatically~~ be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loans or such other term loans, as applicable, minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans or such other term loans, as applicable, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the ~~Yield Differential~~Borrower to the Lenders under the Initial Term Loans or any Incremental Term Loan or other term loan, as applicable, in the initial syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity) (provided that, if the Initial Term Loans are issued in a manner such that all Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring, commitment, amendment or other fees payable in connection with the Incremental Term Loans or such other term loans, as applicable, that are not shared with all Incremental Lenders providing such Incremental Term Loans or all term loan lenders providing such other term loans, as applicable, shall be excluded; (C) any amendments to the Applicable Margin on the Initial Term Loans that became effective ~~upon~~ subsequent to the ~~making~~ Effective Date but prior to the time of such Incremental Term Loans or other term loans, as applicable, shall also be included in such calculations and (vD) ~~to the extent the terms of~~ if the Incremental Term Loans or such other term loans, as applicable, include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased by such amount; (vi) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders, Required Revolving Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Obligations,” “Disqualified Stock,” and “Refinancing Indebtedness”, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Initial Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable and (4) for the amendment of clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Incremental Term Loans; and (vii) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are ~~inconsistent with~~ not consistent with, in the case of Incremental Term Loans, the terms ~~set forth herein~~ and documentation governing the Initial Term Loans, and, in the case of Incremental Revolving Commitments, the terms and documentation governing the Initial Revolving Commitments (except ~~as set forth in~~ to the extent permitted by clause (~~i) through~~ iii), (iv), (v) or (vi) above), ~~such terms~~ they shall be reasonably satisfactory to the Borrower and the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Assumption Agreement~~Commitment Amendment. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion Each of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such parties hereto hereby agrees that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of ~~such~~ any Incremental ~~Revolving Credit~~ Commitment Amendment, this Agreement and any other Loan Document shall be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect deemed amended to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply extent (but only to the ~~transactions effected pursuant~~ extent) necessary to reflect the ~~immediately preceding sentence~~existence and terms of the Incremental Commitments evidenced thereby.

Appears in 2 contracts

Sources: Credit Agreement (Frontdoor, Inc.), Credit Agreement (Servicemaster Global Holdings Inc)

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of one or more (x) additional term loans, ~~request~~ which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments ~~in an amount such that, after giving effect~~ (the commitments thereto, the ~~aggregate amount~~ “New Revolving Credit Commitments”) or a separate Class of ~~Incremental~~ Revolving Credit Commitments ~~established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (i) the ~~amount of~~ commitments thereto, the ~~Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~“Additional Revolving Credit Commitments” and, ~~(ii)~~ together with the ~~date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ New Revolving Credit Commitments, the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are~~ “Incremental Revolving Credit ~~Commitments or~~ Commitments”; together with the Incremental Term Loan Commitments and the Incremental Term C Loan Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the ~~case~~ Maximum Incremental Facilities Amount at the time of ~~any request for~~ incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental ~~Term Loan Commitments~~Facilities Amount at such time). Each such notice shall specify the date (each, ~~whether such~~ an “Increased Amount Date”) on which the Borrower proposes that the Incremental ~~Term~~ Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~shall be effective. The Borrower may ~~seek~~ approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments ~~from existing Lenders (each of which shall be entitled to agree~~ may elect or ~~decline to participate~~ decline, in its sole discretion~~) or~~ , to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any ~~Additional Lender. (b) It shall be a condition precedent~~ existing Lender to ~~the effectiveness of~~ provide any Incremental ~~Commitment that~~ Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing~~ exist on such Increased Amount Date immediately ~~prior to~~ before or immediately after giving effect to such Incremental ~~Commitments~~Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ in connection with any incurrence of ~~any~~ Incremental Loans), or establishment of Incremental Loan Commitments, on an Increased Amount Date, there shall ~~not exceed 2.75:1.00, (iii)~~ be no requirement for the Borrower to bring down the representations and warranties ~~set forth~~ under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, in ~~Article III and in each~~ the case of Incremental Loans or Incremental Loan Commitments used to finance a Permitted Acquisition or other ~~Loan Document~~ acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall be required to be true and correct in all material respects ~~(or in all respects,~~ if ~~qualified as to materiality) on and as~~ requested by the Persons holding more than 50% of the ~~date such~~ applicable Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term~~ Loans or Incremental ~~Revolving Loans thereunder shall comply with Section 2.25(c~~Loan Commitments). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ Loan Commitments shall be ~~the same as~~ effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment (~~, and ~~the Incremental Revolving Loans thereunder)~~ each of which shall be ~~implemented as an increase to~~ recorded in the ~~Total Revolving Credit Commitments~~ Register and shall be ~~on terms identical~~ subject to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions requirements set forth in Section ~~4.02~~5.4(e), all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the ~~establishment of such new Class or tranche~~Incremental Loan Commitments, ~~in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit~~ as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section ~~‎2.25~~2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”). (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit ~~Lender~~ Lenders with a an existing Revolving Credit Commitment ~~immediately prior to~~ of the Class being increased by such ~~increase will~~ New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each ~~Incremental~~ Revolving Credit Lender ~~in respect~~ with a New Revolving Credit Commitment of such ~~increase~~Class (each, a “New Revolving Loan Lender”), and each of such ~~Incremental~~ New Revolving ~~Credit Lender will~~ Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such ~~existing~~ Revolving Credit Lender’s participations hereunder in outstanding Revolving Letters of ~~Credit such that~~Credit, so that after giving effect to each such deemed assignment and assumption ~~of participations~~and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such ~~Incremental~~ New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit ~~Lender) will equal its~~ Commitments of all Revolving Credit ~~Percentage. If~~Lenders under the Credit Facilities, on and (ii) at the ~~date of such increase, there are any Revolving Loans outstanding~~principal amount thereof, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by interests in the Revolving Credit ~~Lenders according~~ Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to ~~their~~ all such assignments and assumptions, the Revolving Credit ~~Percentages (~~Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the ~~increase in~~ addition of such New Revolving Credit ~~Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any~~ Commitments to such existing Revolving Credit ~~Lender in accordance with Section 2.16. The~~ 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 this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the ~~immediately preceding sentence~~“Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto. (c) On any Increased Amount Date (x) on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term 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 and (y) on which any Incremental Term C Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans. (d) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans); (iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any Incremental Term Loans or Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans or Initial Term C Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in respect of such Initial Term Loans or Initial Term C Loans, as applicable, shall be adjusted so that the Yield in respect of such Initial Term Loans or Initial Term C Loans, as applicable, is equal to the Yield in respect of such Incremental Term Loans or Incremental Term C Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans or the Incremental Term C Loans, as applicable, is necessitated by this clause (iv) on the basis of

Appears in 2 contracts

Sources: Credit Agreement (Vistra Energy Corp), Credit Agreement (Energy Future Competitive Holdings Co LLC)

Incremental Facilities. ~~(a) The~~ So long as no Event of Default exists or would arise therefrom, the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Closing Date to (i) request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the principal amount of any class of Term Loans (each, ~~request~~ an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”) and/or (ii) increase the Total Revolving Commitment (each, an “Incremental Revolving Facility” and, such commitments, the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) so long as the aggregate outstanding principal amount of all unutilized Incremental Commitments ~~in an amount such that~~and Incremental Loans does not exceed the Incremental Amount (and the Borrower shall deliver a certificate, ~~after giving effect thereto, the aggregate amount of Incremental Commitments established at~~ on or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental ~~Commitments are requested to~~ Commitment shall become effective ~~(which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ to the Administrative Agent ~~shall agree~~certifying that the Borrower is in compliance with this Section 4.17)~~), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or~~ . Any Incremental Term Loan ~~Commitments and (iv)~~ Commitment Incurred in the ~~case~~ form of increases to any ~~request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans~~ Class of ~~any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from~~ existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be ~~determined by the Borrower~~ identical to and ~~the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date~~ form part of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of such Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving ~~Credit Commitment (and the Incremental Revolving Loans thereunder)~~ Commitments shall be ~~implemented as an increase~~ Incurred in the form of increases to the ~~Total~~ Revolving ~~Credit~~ Commitments and shall be ~~on terms~~ identical to ~~the existing Revolving Credit Commitments (~~and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment form part of such ~~new Class or tranche, in each case on terms consistent with this Section 2.25~~Revolving Facility. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

Sources: Credit Agreement (Advanced Drainage Systems, Inc.), Credit Agreement (Advanced Drainage Systems, Inc.)

Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent ~~from time to~~ at any time, on one or more occasions, request to (i) add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an ~~amount such that, after giving effect thereto, the~~ aggregate amount of not to exceed the Incremental ~~Commitments established at or prior to such time does not exceed $100,000,000~~Amount;. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Facilities denominated in ~~minimum~~ Dollars, in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof, (y) with respect to Incremental Facilities denominated in an Alternative Currency, in an aggregate principal amount of not less than an amount in such Alternative Currency equal to the Dollar Equivalent of $~~500,000~~ 10,000,000, and ~~a minimum amount of~~ $~~5,000,000),~~ 5,000,000 increments in excess thereof or (z) equal to the remaining Incremental Amount) and (ii) the ~~date~~ date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (~~which~~ the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility. (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facilities if such consent would be required under Section 10.04(b) for an assignment of Loans to such Additional Lender. (c) The creation or provision of any Incremental Facility or Incremental Loan shall not ~~be less~~ require the approval of any existing Lender other than ~~10 Business Days nor more than 60 days after~~ any existing Lender providing all or part of any Incremental Facility or Incremental Loan. (d) The applicable Borrower and each Lender or Additional Lender providing a portion of the ~~date of~~ Incremental Facilities shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such ~~notice (or such longer or shorter period~~ other documentation as the Administrative Agent shall ~~agree)), (iii) whether~~ reasonably specify to evidence the Incremental Facilities of such ~~Incremental Commitments are Incremental Revolving Credit Commitments~~ Lender or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new ClassAdditional Lender. The applicable Borrower ~~may seek Incremental Commitments from existing Lenders (~~and each ~~of which shall be entitled to agree~~ Lender or ~~decline to participate in its sole discretion) or any~~ Additional ~~Lender. (b) It shall be~~ Lender providing a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as portion of the ~~date such~~ Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv)~~ Facilities shall determine the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans ~~shall~~ and/or Incremental Revolving Commitments to be ~~determined by the Borrower and the Incremental Term Lenders and~~ set forth in the ~~applicable~~ respective Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term ~~Loans~~ Loan (x) that is a “term loan A” shall be no earlier than the Latest Maturity ~~Date~~Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that is a “term loan A” shall be no shorter than the then longest remaining weighted average life to maturity of the ~~Incremental~~ then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the then longest remaining weighted average life to maturity of ~~any~~ the then-~~outstanding Class~~ existing Term B Loans, in each case calculated as of the date of making such Incremental Term ~~Loans~~Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a Market Intercreditor Agreement that is reasonably acceptable to the Administrative Agent with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall be deemed to be “Total Indebtedness secured by a Lien that is not subordinated to the Liens securing the Obligations” for purposes of calculating the First Lien Net Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans ~~will~~ shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the applicable Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then existing Revolving Commitments, (vi) with respect to any Incremental Term Loans incurred under the Ratio Incremental Amount designated as Term B Loans that rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and security with ~~respect to security and~~ the ~~borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans~~Obligations, ~~(iv)~~ if the All-in In-Yield on applicable to such Incremental Term Loans exceeds the ~~initial~~ All-in In-Yield of for the ~~Tranche~~ initial Term B ~~Term Loans~~ Facility by more than 50 basis ~~points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~points, ~~then~~ the Applicable ~~Margin~~ Rate for the ~~Tranche~~ initial Term B ~~Term Loans~~ Facility shall ~~automatically~~ be increased (without any further action by any party or any amendment hereto) so that the initial All-In-Yield ~~Differential, effective upon the making~~ in respect of such Incremental Term Loans ~~and~~ is no more than 50 basis points higher than the All-In-Yield for the initial Term B Facility, (vvii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the ~~terms~~ existing Revolving Commitment hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of ~~the~~ Credit and any participations therein between any revolving facilities; and (viii) no Incremental Term Loan will be guaranteed by any Person that is not a Subsidiary Loan Party. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Loans ~~are inconsistent with~~ under the ~~terms set forth herein (except as set forth in clause (i) through (iv) above), such terms~~ existing applicable Credit Facility shall be reasonably satisfactory to the Administrative ~~Agent. Any~~ Agent (except to the extent (i) permitted by clauses (i) through (vii) above, (ii) applicable only to periods after the Latest Maturity Date applicable to (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving ~~Credit Commitment~~ Facility, any then-existing Revolving Facility or (~~and~~ iii) in the case of any financial maintenance covenant added for the benefit of any Incremental Facility, such financial covenant is added also for the benefit of (x) in the case of any Incremental Term Facility, any then-existing Term Facility or (y) in the case of any Incremental Revolving ~~Loans thereunder) shall be implemented~~ Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase to shall have the ~~Total Revolving Credit Commitments and shall be on~~ same terms ~~identical to~~ as the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption AgreementFacility. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. ~~Any~~ Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption ~~Agreement may~~Agreement, ~~without consent of any other Lender, effect such amendments to~~ this Agreement ~~and the other Loan Documents~~ shall be amended as ~~may be~~ necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Borrower,~~ Parent Borrower to effect the provisions of ~~this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class~~ or ~~tranche of Term Loans and such other technical amendments as may~~ be ~~necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms~~ consistent with this Section ~~2.25~~2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto. (e) ~~Upon each increase in~~ Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving ~~Credit Commitments pursuant to~~ Commitment shall become effective under this Section ~~‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior~~ 2.20 unless (i) subject to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. IfSection 1.03, on the date on which such Loan is made or of such ~~increase~~effectiveness, ~~there are~~ the conditions set forth in Section 4.02 shall be satisfied (it being understood that all references to “the occasion of any ~~Revolving Loans outstanding~~Borrowing” in Section 4.02 shall be deemed to refer to the Increased Amount Date), (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such ~~Revolving Loans shall upon~~ 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). (f) On the date of effectiveness of ~~such~~ any Incremental Revolving ~~Credit Commitment be prepaid from~~ Facility, the ~~proceeds~~ maximum amount of ~~additional Revolving Loans made~~ LC Exposure permitted hereunder ~~so that~~ shall increase by an amount, if any, agreed upon by Administrative Agent, the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent relevant Issuing Bank 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 sentenceParent Borrower.

Appears in 2 contracts

Sources: Incremental Assumption Agreement and Refinancing Amendment to Credit Agreement (Coty Inc.), Credit Agreement (Coty Inc.)

Incremental Facilities. (a) ~~The~~ Subject to Section 2.11(b), the Borrower ~~may,~~ may by written notice to Agent elect to request the ~~Administrative Agent from time to time~~establishment of one or more Incremental Term Loan commitments (the “Incremental Term Loan Commitments”), ~~request Incremental Commitments~~ in an ~~amount such that, after giving effect thereto, the~~ aggregate amount of ~~Incremental Commitments established at or prior~~ up to $70,000,000. Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify the date (ian “Increased Amount Date”) on which the ~~amount of~~ Borrower proposes that the Incremental Term Loan Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 30 days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date~~ Agent. The opportunity to commit to provide all or a portion of ~~such notice (or such longer or shorter period as~~ the ~~Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or~~ Incremental Term Loan ~~Commitments and (iv) in~~ Commitment shall be offered by the ~~case of~~ Borrower to any ~~request for~~ Eligible Incremental Lenders. To the extent any Eligible Incremental Lenders have provided a commitment to provide such Incremental Term Loan ~~Commitments~~Commitment, ~~whether~~ the Borrower shall provide a copy of such commitment letter to the Agent for distribution to the existing Lenders and offer the existing Lenders the opportunity to provide such Incremental Term Loan Commitment on the same terms as set forth in such commitment letter (the date the Agent receives such commitment letter, the “Notice Date”). If the existing Lenders have not agreed in writing to provide such Incremental Term Loan Commitment within 15 days of the Notice Date, then the Eligible Incremental Lenders may provide the Incremental Term Loan Commitment on the terms of such commitment letter and subject to this Section 2.11. Any existing Lender approached to provide all or a portion of such Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion~~) or any Additional Lender~~, to provide such Incremental Term Loan Commitment. (b) It Such Incremental Term Loan Commitments shall ~~be a condition precedent~~ become effective, as of such Increased Amount Date, subject to the ~~effectiveness~~ satisfaction of ~~any Incremental Commitment that~~ each of the following conditions: (i) the Lenders have funded 100% of the aggregate amount of the Term Loan B Commitments of the Lenders; (ii) the Agent has obtained the commitment of one or more Incremental Term Loan Lenders to provide the applicable Incremental Term Loan and any such Incremental Term Loan Lenders, the Borrower and the Agent have signed an amendment to this Agreement pursuant to which such Incremental Term Loan Lenders agree to make, subject to the terms of this Agreement, a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment and to otherwise evidence such Incremental Term Loan, in form and substance reasonably satisfactory to the Agent (each, a ”Joinder Agreement”); (iii) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately after giving effect to~~ exist on such ~~Incremental Commitments,~~ Increased Amount Date; (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iiiiv) the representations and warranties ~~set forth~~ of the Credit Parties contained in ~~Article III~~ this Agreement and ~~in each~~ the other Loan ~~Document~~ Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all ~~respects~~respects subject to such qualification) as of such Increased Amount Date to the same extent as though made on and as of that date (both before and immediately after giving effect to such Loan), if except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ earlier date~~, such other date)~~ ; and (ivv) the ~~terms of such Incremental Commitments and~~ Borrower shall have reached agreement with the lenders making the Incremental Term ~~Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~ Loan (~~c) Incremental Commitments shall be established pursuant to an amendment (an~~ the “Incremental ~~Assumption Agreement~~Term Loan Lenders”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the ~~Term Loans, (iv) if the All-in Yield on~~ interest margins applicable to such Incremental Term ~~Loans exceeds~~ Loan (which interest margins may be higher than, equal to, or lower than the ~~initial All-~~interest margins applicable to the Term Loan set forth in ~~Yield~~ this Agreement immediately prior to the date of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term ~~Loans~~ Loan, as applicable) and ~~(v)~~ shall have communicated the amount of such interest margins to the ~~extent~~ Agent. Anything to the ~~terms~~ contrary contained herein notwithstanding, if the all in yield (including interest margins, interest floors, original issue discount, closing fees or other similar yield related discounts based on an assumed four-year to life maturity, but excluding any arrangement, underwriting or similar fees that are not shared with all of the ~~Incremental Term Loans are inconsistent with~~ Lenders or prospective lenders) (the ~~terms set forth herein (except as set forth in clause (i~~“All In Yield”) ~~through (iv) above), such terms shall~~ that is to be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as~~ Term Loan is 50 basis points or more higher than the All In Yield applicable to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans ~~as a new~~ hereunder immediately prior to the applicable Increased Amount Date (the amount by which the interest margins are higher, the “Excess”), then the All In Yield applicable to each applicable Class ~~or tranche~~ of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to ~~such increase will automatically~~ the Increased Amount Date shall be increased by the amount of the Excess minus 50 basis points, effective on the applicable Increased Amount Date, and without ~~further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect~~ the necessity of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred action by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceparty hereto.

Appears in 2 contracts

Sources: Credit Agreement (Rent the Runway, Inc.), Credit Agreement (Rent the Runway, Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~increase the existing Revolving Credit Commitments of any Class (any such increase, ~~request~~ the “Incremental ~~Commitments in~~ Revolving Credit Commitments”) and/or incur one or more new term loan commitments and/or increase the commitments of any Class of Term Loans (the “Incremental Term Loan Commitments”) by an amount ~~such that~~(1) not to exceed in the aggregate, ~~after giving effect thereto~~at the time of incurrence, the ~~aggregate amount~~ Incremental Available Amount referred to in clauses (a), (b) and (c)(i) of ~~Incremental Commitments established at or prior to~~ the definition thereof and (2) not less than, individually, $25,000,000. (b) Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice~~ Administrative Agent (or such ~~longer or~~ shorter period of time as may be agreed to by the Administrative Agent ~~shall agree~~in its sole discretion)); and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (~~iii~~each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) ~~whether~~ to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans 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 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 ~~and~~ shall become effective as of such Increased Amount Date; provided that: (ivi) (x) subject, solely in the case of ~~any request for~~ Incremental Term ~~Loan Commitments~~Loans, ~~whether such Incremental Term Loan Commitments are commitments~~ to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) Section 1.09(c), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ 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; provided that this clause (iii)(x) may be waived or limited as agreed in the ~~Total Leverage Ratio, determined on a Pro Forma Basis~~ Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (~~assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii~~y) the representations and warranties ~~set forth in Article III~~ of the Borrower and in each other Loan ~~Document~~ Party contained in Article 5 hereof shall be true and correct in all material respects (~~or in all respects, if~~ 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 ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ 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 or other ~~date~~Investment in the nature of an acquisition, this clause (i)(y) shall be limited to Sections 5.01(a), 5.01(b), 5.02(a), 5.13, 5.17, 5.18, 5.19 (other than the first or second sentence thereof) and 5.20; (ii) the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 3.01); (iii) the Incremental Facilities shall be Guaranteed by 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 ~~Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~increase made pursuant thereto. (cg) ~~Incremental Commitments shall be established pursuant to an amendment~~ The terms (an including pricing, “~~Incremental Assumption Agreement”)~~ most favored nations” provisions, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions relating to ~~this Agreement. The terms~~ excess cash flow, asset sale proceeds and condemnation proceeds) and conditions of the Incremental Term Loans ~~shall be determined by the Borrower~~ and ~~the~~ Incremental Term ~~Lenders and~~ Loan Commitments shall be, except as otherwise explicitly set forth herein, as agreed in the Joinder Agreement between the Borrower, the applicable Incremental ~~Assumption Agreement~~Term Loan Lenders providing such Incremental Term Loan Commitments and the Administrative Agent; provided that (i) the ~~final maturity date~~ 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 each Class shall be no earlier than the Latest Maturity ~~Date, (ii)~~ Date at the ~~average life to maturity~~ time of the incurrence of such Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the ~~All-in Yield on such~~ pricing of each Class of Incremental Term Loans ~~exceeds~~ may be subject to “most favored nations” provisions if and to the ~~initial All-~~extent set forth in ~~Yield of~~ the ~~Tranche B Term Loans by more than 50 basis points (the amount of~~ Joinder Agreement for such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans Class and (v) to in the ~~extent the terms~~ case of ~~the~~ Incremental Term ~~Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above)~~Loans, such ~~terms shall be reasonably satisfactory to~~ 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 mandatory prepayments of Term Loans hereunder, as specified in the ~~Administrative Agent. Any~~ applicable Joinder Agreement, and in the case of Incremental Revolving Credit ~~Commitment~~ 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. (h) The terms and provisions of the Incremental Revolving Loans ~~thereunder) shall be implemented as an increase to the Total~~ and Incremental Revolving Credit Commitments ~~and~~ shall be ~~on terms~~ identical to the ~~existing~~ other Revolving Credit Loans of the Class being so increased and the Revolving Credit Commitments ~~(and~~ of the Class being so increased; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving Credit Facility of the Class being so increased, the interest rate on the Revolving Credit Facility of such Class shall be increased to equal such required rate without further consent of the affected Lenders; provided, further, that if the Incremental Revolving Loan Lenders require a commitment fee on the undrawn portion of such Incremental Revolving Loans ~~thereunder)~~and Incremental Revolving Commitments in excess of the commitment fee then applicable to the Revolving Credit Facility of the Class being so increased, the commitment fee on the Revolving Credit Facility of such Class shall be increased to equal such commitment fee without further consent of the affected Lenders. (di) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25,~~ 2.14 (including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to ~~establish the Incremental Term Loan Commitments and~~ enable any Incremental Term Loans ~~as a new Class or tranche of~~ that are intended to be fungible with any other Term Loans ~~and~~ to be fungible with such other ~~technical~~ Term Loans, which shall include any amendments ~~as may be necessary or appropriate in~~ that modify the ~~reasonable opinion~~ aggregate principal amount of scheduled installment payments to the ~~Administrative Agent and~~ extent such amendment does not decrease the ~~Borrower in connection with the establishment of~~ installment payment an existing Term Lender would have received prior to giving effect to any such ~~new Class or tranche, in each case on terms consistent with this Section 2.25~~amendment). (ej) ~~Upon each increase~~ This Section 2.14 shall supersede any provisions in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect 2.13 or Section 10.01 to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 2 contracts

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

Incremental Facilities. (a) ~~The~~ On one or more occasions at any time on or after the Effective Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request an increase to the size of an existing Facility (each such increase, ~~request~~ a “Term Loan Increase”) and/or the establishment of one or more incremental term loan facilities (each, an “Incremental ~~Commitments in~~ Term Loan; each Incremental Term Loan is referred to individually as an ~~amount~~ “Incremental Term Facility”; each Term Loan Increase and Incremental Term Facility are collectively referred to as a “Commitment Increase”) such ~~that, after giving effect thereto,~~ that the aggregate amount of the Facilities as so increased, including all such Incremental ~~Commitments established at or prior to such time~~ Term Facilities, does not exceed at any time $~~100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which~~ 950,000,000; provided, that each such Commitment Increase shall be in ~~minimum increments of $500,000 and a minimum~~ an aggregate principal amount of not less than $~~5,000,000), (ii)~~ 10,000,000. Each such notice shall specify the date on which the Borrower proposes that such ~~Incremental Commitments are requested to become effective (~~Commitment Increase shall be effective, which shall be a date not be less than 10 five (5) Business Days ~~nor more than 60 days after the date of such notice~~ (or such ~~longer or shorter period~~ lesser number of days as the Administrative Agent shall agree))) after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent, the Arrangers, the Syndication Agents and/or their respective Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Commitment Increase; provided that (~~iii~~x) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments~~ any Lender approached to provide all or ~~Incremental Term Loan Commitments and (iv) in the case~~ a portion of any ~~request for Incremental Term Loan Commitments~~Commitment Increase may elect or decline, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion, to participate in a Commitment Increase, and (y) any Lender or other Person that is an Eligible Assignee to whom any ~~Additional~~ portion of such Commitment Increase shall be allocated (each, an “Incremental Term Loan Lender”) shall be subject to the approval of the Borrower and the Administrative Agent (such approval not to be unreasonably withheld or delayed), to the extent required by Section 9.04(b). (b) It The Administrative Agent and the Borrower shall ~~be a condition precedent to~~ 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 ~~Incremental~~ Commitment ~~that~~ Increase and the availability of any borrowings under any such Commitment Increase on the Increased Amount Date shall be subject to the satisfaction of the following conditions precedent: (i) after giving pro forma effect to such Commitment Increase and borrowings and the use of proceeds thereof, no ~~Default or~~ Event of Default shall ~~have occurred~~ exist and be ~~continuing immediately prior to or immediately after giving effect to such Incremental Commitments,~~ continuing; (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties ~~set forth~~ made or deemed made by the Borrower in ~~Article III and in each other~~ any Loan 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 (or in which case such representations and warranties shall have been true and correct in all ~~respects, if qualified as to materiality)~~ material respects on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ 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 ~~terms~~ 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~~ Term Facility, the conditions in clauses (i) and (ii) above have been satisfied; (C) if requested by the Administrative Agent, a customary opinion of counsel to the Borrower and the ~~Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~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; (cD) ~~Incremental Commitments shall be established pursuant~~ if requested by any Lender, new notes executed by the Borrower, payable to ~~an amendment~~ any new Lender, and replacement notes executed by the Borrower, payable to any existing Lender; (an E) a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (a “~~Incremental Assumption~~ New Lender Joinder Agreement”) ~~relating~~ 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 ~~this Agreement. The terms~~ Section 9.04(b), consented to in writing by the Administrative Agent; and (F) written confirmation from each existing Lender, if any, participating in such Commitment Increase of the amount of New Term Loans to be provided by it; (v) any Commitment Increase that constitutes an increase in an existing Facility shall be on the same terms as the Class or tranche of the Facility being increased (in each case, other than pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions or additional terms applicable only to periods after the Maturity Date); (vi) all incremental commitments and loans provided as part of a newly established Incremental Term ~~Loans~~ Facility shall ~~be determined~~ be, subject to Section 9.02(b)(iv) and clauses (v), (x) and (z) of the second proviso to Section 9.02(b), on terms agreed to by the Borrower and the Lenders providing such Incremental Term ~~Lenders and set forth in the applicable Incremental Assumption Agreement~~Facility; provided that (i) if the terms of such Incremental Term Facility (other than final ~~maturity date~~ maturity) are not the same as the terms of ~~any~~ a then existing tranche of the Term Loan Facility, the operational, technical and administrative provisions of such Incremental Term Facility shall be on terms reasonably acceptable to the Administrative Agent, and (ii) all Incremental Term Loans ~~shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the~~ under each Incremental Term ~~Loans~~ Facility shall ~~be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will~~ rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment with all other Term Loans and shall be treated substantially the same as (and in any event no more favorably than) all other Term Loans. Incremental Term Facilities may be made hereunder pursuant to a supplement, an amendment or an amendment and restatement (an “Incremental Term Facility Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Term Loan Lender (including any Eligible Assignee becoming a party to this Agreement as an Incremental Term Loan Lender) with respect to ~~security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on~~ such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans Facility and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any Incremental Revolving Credit Commitment (and~~ Notwithstanding anything to the contrary in Section 9.02, the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25~~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, ~~including~~ 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 ~~amendments necessary~~ Increased Amount Date on which any Commitment Increase is effected, subject to ~~establish~~ 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 ~~Commitments and~~ Lenders with respect to any Incremental Term ~~Loans as a new Class or tranche of Term Loans~~ 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 ~~technical~~ Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or ~~appropriate~~ appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent~~ Agent, to give effect to such Incremental Term Facility and the ~~Borrower in connection with the establishment~~ provisions of ~~such new Class or tranche, in each case on terms consistent with~~ this Section ~~2.25~~2.04. (eh) ~~Upon each increase~~ This Section 2.04 shall supersede any provisions in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender2.18(c) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect or 9.02(b) to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 2 contracts

Sources: Term Loan Agreement (Invitation Homes Inc.), Term Loan Agreement (Invitation Homes Inc.)

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 may~~Company may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request (i) during the Availability Period, the establishment of Incremental Revolving Commitments in ~~an amount such that, after giving effect thereto,~~ respect of the ~~aggregate amount~~ Global Tranche Commitments and/or the US Tranche Commitments and/or (ii) the establishment of Incremental ~~Commitments established at or prior to~~ Term Loan Commitments. Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify (iA) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan ~~Commitments~~ Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment and (ivy) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of any ~~request for~~ 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, ~~whether such~~ or first committed, in the case of Incremental Revolving Commitments) of all Incremental Revolving Commitments and Incremental Term Loan Commitments ~~are commitments~~ established pursuant to ~~make additional~~ 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 ~~then outstanding Class or commitments~~ 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 ~~make~~ 1.00 (other than to the extent such Incremental Revolving Commitments, Incremental Term ~~Loans~~ Loan Commitments and/or Incremental Equivalent Notes are incurred pursuant to this clause (C) concurrently with the incurrence of ~~a new Class. The Borrower may seek~~ Incremental Revolving Commitments, Incremental Term Loan Commitments ~~from existing Lenders~~ and/or Incremental Equivalent Notes in reliance on clause (~~each~~ A) of this sentence, in which case the Leverage Ratio shall be ~~entitled~~ permitted to ~~agree or decline~~ exceed 3.50 to ~~participate~~ 1.00 to the extent of such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes incurred in ~~its sole discretion~~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) ~~or any Additional Lender~~prior to utilization of the amount set forth in clause (A) of this sentence. (b) ~~It shall be a condition precedent to the effectiveness~~ The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder (including the Tranche under which such Incremental Revolving Commitment is being effected), and shall be treated as a single Class with such Revolving Commitments and Loans under such Tranche. The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Tranche A Term Loan Commitments and the Tranche A Term Loans; provided that (i) the interest rate margins with respect to any Incremental Term Loans shall be as agreed by the Company and the lenders in respect thereof, (ii) any Incremental Term Loan shall have terms, in the Company’s reasonable judgment, customary for a term loan of such type under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule with respect to any Incremental Term Loans shall be as agreed by the Company and the lenders in respect thereof, provided that the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche A Terms Loans and Incremental Term Loans with the longest remaining weighted average life to maturity, (iv) no Incremental Term Maturity Date with respect to Incremental Term Loans shall be earlier than the Tranche A Term Loan Maturity Date, (v) except as set forth above (or otherwise customary for Incremental Term Loans of such type), the Incremental Term Loans shall be treated no more favorably than the Tranche A Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans; provided further that any Incremental Term Loans may add additional covenants or events of default not otherwise applicable to the Tranche A Term Loans or covenants more restrictive than the covenants applicable to the Tranche A Term Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Facility so long as all Lenders receive the benefits of such additional covenants, events of default or more restrictive covenants (unless such additional covenants, events of default or more restrictive covenants are customarily limited to term loans of the type of such Incremental Term Loans), (vi) to the extent the terms applicable to any Incremental Term Loans are inconsistent with the terms applicable to the Tranche A Term Loans (except, in each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, (vii) any Incremental Term Loans shall have the same Guarantees as, shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Loans (except to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent), (viii), in the case of Incremental Term Loans marketed as term “B” loans to institutional investors (“Incremental Term B Loans”), any Incremental Term Loan Amendment with respect to Incremental Term B Loans may (A) include such features as are, in the reasonable judgment of the Company and the Administrative Agent, customarily applicable to such type of loans (including but not limited to the ability to do refinancing amendments, extensions/loan modification offers and repurchases of such Incremental Term B Loans and limitations on the applicability of financial covenants to such Incremental Term B Loans) and (B) may provide for additional Collateral hereunder so long as such Collateral is shared on a pari passu basis with the Loans, (ix) any lenders holding Incremental Term B Loans may agree in advance pursuant to an Incremental Term Loan Amendment to certain modifications to the negative (but not financial maintenance) covenants set forth in Article VI hereof so long as such modifications shall not be applicable under this Agreement until such time as, and to the extent that, the Required Lenders (calculated without giving effect to the lenders holding such Incremental Term B Loans) have otherwise approved such modifications. Any Incremental Term Loan Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be more than five (5) maturity dates in respect of the Credit Facilities (including any Replacement 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 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) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to or and immediately after giving effect to such Incremental ~~Commitments~~Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the ~~Total Leverage Ratio~~date of effectiveness thereof, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties of each Loan Party set forth in ~~Article III and in each other~~ the Loan ~~Document~~ 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~~, if qualified as to materiality~~) on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ date, ~~such other date~~(iii) ~~and (iv) the terms of~~ after giving effect to such Incremental Commitments and the ~~Incremental Term~~ making of Loans or and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving ~~Loans thereunder~~ Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn), the Company shall ~~comply~~ be in pro forma compliance with the financial covenants set forth in Sections 5.09 and 5.10, (iv) the Company shall make any payments required to be made pursuant to Section ~~2.25(c). (c)~~ 2.16 in connection with such Incremental Commitments ~~shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower~~ and the ~~Incremental Term Lenders~~ related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental ~~Assumption Agreement~~Facility Agreement are satisfied; provided further that ~~(i) the final maturity date of any~~ no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be ~~no earlier than~~ continuing or would result from entry into the ~~Latest Maturity Date~~Limited Conditionality Acquisition Agreement, (ii2) ~~the average life to maturity~~ as of the date of the borrowing of such Incremental ~~Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of~~ Term Loans, no Event of Default under clause (~~iii~~a) or (f) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the ~~Incremental Term Loans will rank pari passu with~~ 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 ~~junior to~~warranty qualified by materiality or Material Adverse Effect, in all respects) ~~the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors~~ 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 shall be the same as the Borrower and Guarantors with respect to the~~ Term Loans, customary “Sungard” representations and warranties (~~iv) if~~ with such representations and warranties to be reasonably determined by the ~~All-in Yield on~~ Lenders providing such Incremental Term ~~Loans exceeds~~ Loans) shall be true and correct in all material respects (or, in the ~~initial All-~~case of any representation or warranty qualified by materiality or Material Adverse Effect, in ~~Yield of~~ all respects) immediately prior to, and after giving effect to, the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making incurrence of such Incremental Term Loans and (v5) ~~to the extent the terms~~ as of the ~~Incremental Term Loans are inconsistent~~ date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Company shall be in pro forma compliance with the ~~terms set forth herein (except as~~ financial covenants set forth in ~~clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~Sections 5.09 and 5.10. ~~Any~~ Each Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent, to give effect to the provisions of this Section, including, without limitation, amendments to address equity and cash patronage provisions reasonably requested by any farm credit bank and reasonably acceptable to the Administrative Agent and the ~~Borrower~~Company. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to ~~effect the provisions~~ be a “Lender” (and a Lender in respect of ~~this Section 2.25, including any amendments necessary to establish the Incremental Term Loan~~ Commitments and ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment in respect of any Class, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new~~ Incremental Lender in respect of such Class ~~or tranche~~and (B) the total Revolving Commitments of such Class shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit~~ Commitments ~~pursuant to this Section ‎2.25~~of any Class, each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned~~ of any applicable Class shall assign to each Incremental Revolving ~~Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Revolving Commitment, and each such Incremental Revolving ~~Credit~~ Lender ~~will automatically~~ 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 ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Revolving Loans and participations ~~hereunder~~ in Letters of Credit will be held by all the Revolving Lenders of each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon applicable Class ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages Commitment. (~~after giving effect~~ f) Subject to the ~~increase~~ terms and conditions set forth herein and in ~~Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on~~ the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.applicable Increm

Appears in 2 contracts

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

Incremental Facilities. (a) The Parent Borrower may, from time to time after the Closing Date, upon notice by ~~written notice~~ the Parent Borrower to the Administrative Agent ~~from time~~ and the Person appointed by the Parent Borrower to ~~time~~arrange an incremental Facility (each, ~~request~~ an “Incremental ~~Commitments in an amount~~ Credit Facility”) (such ~~that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Parent Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) specifying the proposed Borrower (which may include a Co-Borrower), the proposed amount of thereof and the ~~Incremental~~ proposed currency denomination thereof, request (i) an increase in the Commitments ~~being requested~~ under any Revolving Tranche (which shall be ~~in minimum increments of $500,000~~ on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (each, a ~~minimum amount of $5,000,000~~“Revolving Credit Commitment Increase”), (ii) ~~the date on which such Incremental Commitments are requested to become effective~~ an increase in any Term Loan Tranche then outstanding (which shall ~~not~~ be ~~less than 10 Business Days nor more than 60 days after~~ on the ~~date of such notice~~ same terms as, and become part of, the Term Loan Tranche proposed to be increased hereunder (~~or such longer or shorter period~~ except as ~~the Administrative Agent shall agree~~otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”), (iii) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments~~ the addition of one or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a more new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent revolving credit facilities to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental CommitmentsFacilities, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each ~~other Loan Document shall be true~~ case, in such currency or currencies as the Parent Borrower identifies in such notice (each, a “New Revolving Facility” and, any advance made by a Lender thereunder, a “New Revolving Loan”; and ~~correct in all material respects (or in all respects~~the commitments thereof, ~~if qualified as to materiality) on and as of~~ the ~~date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date~~“New Revolving Commitment”) and (iv) the ~~terms~~ addition of one or more new term loan facilities, in each case, in such ~~Incremental~~ currency or currencies as the Parent Borrower identifies in such notice (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “New Term Commitment”; and together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the ~~Incremental~~ Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity DateCommitment Increase, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “~~Yield Differential~~New Loan Commitments”~~), then~~ ;) in an amount not to exceed the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.sum of:

Appears in 2 contracts

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

Incremental Facilities. ~~(a) The~~ On one or more occasions at any time after the Closing Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request (A) an increase to the existing Revolving Credit Commitments (any such increase, ~~request~~ the “New Revolving Credit Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Commitments”, together with the New Revolving Credit Commitments, the “Incremental Commitments”), by up to an aggregate amount not to exceed $400,000,000 for all Incremental Commitments ~~in an amount such that, after giving effect thereto,~~ (so that the ~~aggregate~~ sum of the Maximum Revolving Credit Amount plus the principal amount of ~~Incremental~~ Term Commitments ~~established at or prior to such time~~ made hereunder does not exceed $~~100,000,000~~1,800,000,000). ~~Such~~ Each such notice shall ~~set forth~~ specify the date (ieach, an “Increased Amount Date”) on which the ~~amount of the~~ Borrower proposes that such Incremental Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments ~~are requested~~ on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to ~~become effective~~ provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment; provided that (1) 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 within such ten (10) Business Day period after its receipt of such request, such Lender shall be deemed to have declined to provide such Incremental Commitments and (2) any Revolving Credit Lender which is a party to this Agreement prior to such request for increase that so elects to increase its Revolving Credit Commitment shall be required to increase its Alternative Currency Commitment on a pro rata basis (provided that to the extent any Revolving Credit Lender’s Pro Rata Share of Alternative Currency Commitments was zero prior to such increase, then such Lender shall not be ~~less than 10 Business Days nor more than 60 days after the date~~ required to allocate any portion of such ~~notice~~ increase to an Alternative Currency 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 ~~longer or shorter period as~~ Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Administrative Agent ~~shall agree)~~(such approval not to be unreasonably withheld or delayed), ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv)~~ and, in the case of ~~any request for Incremental Term Loan Commitments~~a New Revolving Credit Commitment, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders the Issuing Bank and the Swingline Lender (each of which approvals shall not be unreasonably withheld), unless such New Revolving Credit Lender is an existing Lender (other than a Defaulting Lender) with a Revolving Credit Commitment at such time or such New Term Lender is an existing Lender or an Affiliate of an existing Lender. The terms and provisions of any New Revolving Credit Commitments shall be ~~entitled~~ identical to ~~agree or decline to participate in its sole discretion~~the existing Revolving Credit Commitments. The terms and provisions of any New Term Commitments and any New Term Loans shall (a) or provide that the maturity date of any ~~Additional Lender.~~ New Term Loan that is a separate tranche shall be no earlier than the Term Maturity Date and shall not have any scheduled amortization payments, (b) ~~It shall~~ 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 ~~a condition precedent~~ identical to the existing Term Loans or reasonably acceptable to the Administrative Agent and each New Term Lender. The effectiveness of any Incremental ~~Commitment that~~ Commitments and the availability of any borrowings under any such Incremental Commitments shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Potential Event of Default or Event of Default shall ~~have occurred~~ exist and ~~be continuing immediately prior to or immediately after giving effect to such Incremental Commitments,~~ (ii) as of the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments~~ last day of the most recent calendar quarter for which financial statements have been ~~fully funded~~ delivered pursuant to Section 8.2, the Borrower would have been in compliance with the financial covenants set forth in Section 10.1 and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ Section 10.12; (~~iii~~y) the representations and warranties ~~set forth~~ made or deemed made by the Borrower in ~~Article III and in each other~~ any Loan 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 (or in which case such representations and warranties shall have been true and correct in all ~~respects, if qualified as to materiality)~~ material respects on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ earlier date~~, such other date)~~ ); and (ivz) the ~~terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder~~ Administrative Agent shall ~~comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ have received each of the ~~Incremental Term Loans shall be determined by the Borrower~~ following, in form and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be substance reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment~~ : (~~and the Incremental Revolving Loans thereunder~~i) ~~shall be implemented as an increase~~ if not previously delivered to the ~~Total Revolving Credit Commitments~~ 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 ~~shall be on terms identical~~ (ii) a customary opinion of counsel to the ~~existing Revolving Credit Commitments~~ Borrower (which may be in substantially the same form as delivered on the Closing Date and ~~the Revolving Loans thereunder). (d) In connection with any Incremental Commitments,~~ 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 ~~applicable Incremental~~ 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 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 ~~execute~~ become a Lender with respect to its New Revolving Credit Commitment and ~~deliver~~ all matters relating thereto. On any Increased Amount Date on which any New Term Commitments are effected, subject to the ~~Administrative Agent~~ 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 ~~Incremental Assumption Agreement providing for such Incremental Commitments~~amount equal to its New Term Commitment, and ~~such other documentation as the Administrative Agent~~ (ii) each New Term Lender shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent become a Lender hereunder with ~~the conditions set forth in Section 4.02, all~~ respect to the ~~extent reasonably requested by~~ New Term Commitment and the ~~Administrative Agent or the other parties to such Incremental Assumption Agreement~~New Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly ~~notify~~ upon receipt of the Borrower’s notice of each ~~Lender~~ 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 applicable, and (z) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, in each case subject to the ~~effectiveness~~ assignments contemplated by this paragraph. The fees payable by Borrower upon any such increase in the Commitments shall be agreed upon by the Administrative Agent and Borrower at the time of such increase. The Incremental Commitments shall be evidenced pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Revolving Credit Lenders or New Term Lenders, as applicable, and the Administrative Agent, and each ~~Incremental Assumption Agreement~~of which shall be recorded in the Register. ~~Any Incremental Assumption Agreement~~ Each Additional Credit Extension Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.1(e). (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower may, ~~by written notice to the Administrative Agent~~ at any time and from time to time, elect to request the establishment of (x) one or more additional tranches of term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental ~~Commitments~~ Term Commitments”) or (y) one or more tranches of revolving credit facilities (the “Incremental Revolving Commitments”, together with the Incremental Term Commitments, the “Incremental Commitments”; and the loans thereunder, “Incremental Loans”), in an aggregate principal amount not in excess of the then-available Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such ~~that, after giving effect thereto,~~ lesser amount as (x) may be approved by the ~~aggregate amount~~ Administrative Agent in its reasonable discretion or (y) shall constitute the then-available Maximum Incremental Facilities Amount at such time). The Borrower may approach any existing Lender or any Additional Lender to provide all or a portion of the Incremental ~~Commitments established at~~ Commitments; provided that any Lender offered or ~~prior~~ approached to ~~such time does not exceed $100,000,000. Such notice shall set forth (i) the amount~~ provide all or a portion of the Incremental Commitments ~~being requested (which~~ may elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall ~~be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~have no obligation to approach any existing Lender to provide any Incremental Commitment; provided, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as further, that the Administrative Agent shall ~~agree))~~have consented to such Additional Lender’s providing of the Incremental Commitments to the extent such consent, ~~(iii~~if any, would be required under Section 13.6(b) ~~whether~~ in connection with an assignment of Term Loans or Commitments to such Additional Lender. In each case, such Incremental Commitments ~~are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and~~ shall become effective as of the date determined by the Borrower (~~iv) in~~ the ~~case of any request for Incremental Term Loan Commitments~~“Increased Amount Date”); provided that, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) (x) other than as described in the immediately succeeding clause (y), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing~~ exist on such Increased Amount Date immediately ~~prior to~~ before or immediately after giving effect to such Incremental Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Commitment is being provided in connection with a Permitted Acquisition or similar Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Specified Default shall exist on such Increased Amount Date, (ii) in connection with any incurrence of Incremental Loans or establishment of Incremental Commitments, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents unless requested by the lenders providing such Incremental Loans or Incremental Commitments (subject to waiver by such lenders of any such requirement) and (iii) the establishment of Incremental Commitments or the incurrence of Incremental Loans shall be effected pursuant to one or more amendments (each, an “Incremental Amendment”) to this Agreement executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). For all purposes of this Agreement, any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase (such new or existing series of Term Loans, each, a “Series”). (b) The terms and conditions of the Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent; provided that (i) such Incremental Revolving Commitments may have a maturity that is shorter than the Maturity Dates of the Term Loans but such maturity shall be longer than the maturity date of the Initial ABL Facility, (ii) the ~~Total Leverage Ratio~~pricing, interest rate margins, discounts, premiums, interest rate floors and fees of such Incremental Revolving Commitments shall be determined ~~on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ by the Borrower and ~~without netting~~ the ~~proceeds of any Incremental Loans),~~ lender(s) thereunder and shall not ~~exceed 2.75:1.00~~be subject to any “most-favored nation” provisions (including under Section 2.14(d)(iv) below), (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Revolving Commitments ~~become effective (or if such representation~~ may have sub-facilities for letters of credit and ~~warranty relates to another date~~swingline loans, ~~such other date) and~~ (iv) lenders providing such Incremental Revolving Commitments shall be included in the ~~terms~~ definition of “Required Lenders”, (v) if such Incremental Revolving Commitments benefit from a financial covenant, the Term Loans shall not be required to enjoy the same benefit of such financial covenant and they shall cross accelerate (instead of cross default) to a breach of such financial covenant, (vi) customary amendments to the definition of “Maximum Incremental Facilities Amount” may be made to permit any repayment of loans under Incremental Revolving Commitments accompanied with permanent terminations of such Incremental Revolving Commitments to be added to clause (2) of such definition, (vii) no Subsidiary (other than a Guarantor) is an obligor of such Incremental Revolving Commitments and (viii) if secured, such Incremental Revolving Commitments are not secured by any assets other than all or any portion of the Collateral or any Liens other than Liens that are pari passu with or junior to the Liens securing the Obligations. (c) On any Increased Amount Date on which any Incremental Term Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing applicable terms and conditions, (i) each Lender with an Incremental Term Commitment of any Series shall make a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Commitment of such Series, and (ii) each Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Commitment of such Series and the Incremental Term Loans or of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental ~~Revolving~~ Term Loans ~~thereunder shall comply with Section 2.25(c)~~for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Term Loans. (cd) The terms and provisions of any Incremental Term Commitments and the respective related Incremental Term Loans, in each case effected pursuant to a Term Loan Increase shall be ~~established pursuant~~ substantially identical to ~~an amendment (an “~~the terms and provisions applicable to the Class of Term Loans subject to such increase; provided that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental ~~Assumption Agreement”~~Term Commitments and the respective related Incremental Term Loans, that may be agreed to among the Borrower and the lender(s) ~~relating to this Agreement~~providing and/or arranging such Incremental Term Commitments may be paid in connection with such Incremental Term Commitments. The terms and provisions of any Incremental Term Commitments and the respective related Incremental Term Loans of any Series not effected pursuant to a Term Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date with respect to the Initial Term Loans, provided that the requirements of the foregoing clause (i) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (ii) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans; (iii) the Incremental Term Loans (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans are unsecured or rank junior in right of payment or as to security with the Obligations, such Incremental Term Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any Obligations outstanding under this Agreement and, if secured, shall not be secured by assets of the Credit Parties other than Collateral (and, unless secured on a pari passu basis with the Obligations, shall be subject to a subordination agreement (if payment subordinated) and/or the Applicable Intercreditor Agreement); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule (subject to clauses (i) and (ii) above) applicable to any Incremental Term Loans shall be determined by the Borrower and the ~~Incremental Term Lenders and set forth~~ lender(s) thereunder; provided, however, that, if the Yield, in ~~the applicable Incremental Assumption Agreement; provided that (i) the final maturity date~~ respect of any Incremental Term Loans ~~shall be no earlier than the Latest Maturity Date,~~ that (iiw) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and security with ~~respect to security and~~ the ~~borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the~~ Initial Term Loans, (ivx) if are incurred on or prior to the ~~All-in Yield on such Incremental~~ date that is 12 months after the Closing Date and (y) have a maturity date that is less than two years after the Initial Term ~~Loans~~ Loan Maturity Date as of the date of funding thereof, exceeds the ~~initial All-~~Yield in ~~Yield~~ respect of ~~the Tranche B~~ any Initial Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.50%, then the Applicable ABR Margin ~~for~~ or the ~~Tranche B~~ Applicable LIBOR Margin, as applicable, in respect of such Initial Term Loans shall ~~automatically~~ be ~~increased by~~ adjusted so that the Yield ~~Differential, effective upon~~ in respect of such Initial Term Loans is equal to the ~~making~~ Yield in respect of such Incremental Term Loans ~~and~~ minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, the increased Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans; and (v) ~~to the extent~~ all other terms of any Incremental Term Loans (other than as described in clauses (i), (ii), (iii) and (iv) above) may differ from the terms of the Initial Term Loans if agreed by the Borrower and the lender(s) providing such Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder)Loans. (de) ~~In connection with any Incremental Commitments, the Borrower, the~~ The Administrative Agent and ~~each applicable Incremental Lender shall execute and deliver~~ the Lenders hereby consent to the ~~Administrative Agent an~~ consummation of the transactions contemplated by this Section 2.14 and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14. Each Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other ~~Lender~~Lenders, (x) effect ~~such~~ technical and corresponding amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section ~~2.25, including any amendments necessary~~ 2.14 and (y) with respect to ~~establish~~ the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or trancheRevolving Commitments, ~~in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant~~ add provisions solely applicable to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender Commitments (including ~~each such~~ provisions relating to extensions and refinancings of Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

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

Incremental Facilities. (a) ~~The Borrower may~~On one or more occasions at any time after the Closing Date, the Obligors may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request an increase to the existing Commitments (any such increase, ~~request~~ the “Incremental Commitments” and the loans made thereunder, the “Incremental Loans”) in an aggregate amount not to exceed $300,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Obligors propose that such Incremental Commitments ~~in an amount such that~~shall be effective, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days (or such shorter period as may be agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent. Incremental Commitments ~~are requested~~ may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to ~~become effective~~ make, or provide commitments with respect to, an Incremental Loan) or by any other Person (~~which shall not be less than 10 Business Days nor more than 60 days after the date~~ each, an “Incremental Lender”); provided that any such Incremental Lender to whom any portion of such ~~notice (or such longer or shorter period as~~ Incremental Commitment shall be allocated shall be subject to the approval of the Borrower, the Administrative ~~Agent shall agree))~~Agent, ~~(iii) whether~~ the Issuing Banks and the Swingline Lender unless such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from Lender is an existing ~~Lenders~~ Lender (each of which approvals shall not be unreasonably withheld, conditioned or delayed). The terms and provisions of any Incremental Commitments shall be ~~entitled~~ identical to ~~agree or decline to participate in its sole discretion) or any Additional Lender~~the existing Commitments. (b) ~~It shall be a condition precedent to the~~ The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment ~~that~~ shall be subject to the satisfaction of the following conditions precedent: (i) immediately prior to and after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments,~~ exist; (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties ~~set forth~~ made or deemed made by the Obligors in Article III ~~and in each other Loan Document~~ hereof shall be true and correct in all material respects on the Increased Amount Date except to the extent that such representations and warranties expressly relate solely to an earlier date (or in which case such representations and warranties shall have been true and correct in all ~~respects, if qualified as to materiality)~~ material respects on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; (iii) the Administrative Agent shall have received one or more Additional Credit Extension Amendments, providing for Incremental Commitments in the amount of such increase; and (iv) the Administrative Agent shall have received an opinion of counsel to the Loan Parties (in substantially the same form as delivered on the Closing Date which may at the option of the Borrower be delivered by internal counsel of the Loan Parties), and addressed to the Administrative Agent and the Lenders. (c) On each Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments, (b) each Incremental Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and (c) each Incremental Lender shall become a Lender with respect to its Incremental Commitment and all matters relating thereto. (d) The Administrative Agent shall notify the Lenders promptly upon receipt of notice of each Increased Amount Date and in respect thereof (y) the Incremental Commitments and the Incremental ~~Term Loans or Incremental~~ Lenders, and (z) in the case of each notice to any existing Lender, the respective interests in such ▇▇▇▇▇▇’s Revolving ~~Loans thereunder shall comply with Section 2.25(c)~~Loans, in each case subject to the assignments contemplated by this Section. (ce) ~~Incremental Commitments shall be established pursuant~~ Any upfront fees payable to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of~~ the Incremental ~~Term Loans~~ Lenders shall be determined by the Borrower and the applicable Lenders. (f) The Incremental ~~Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans~~ Commitments shall be ~~no earlier than~~ effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the ~~Latest Maturity Date~~Obligors, ~~(ii) the average life to maturity of~~ the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment Lender and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment (~~, and ~~the Incremental Revolving Loans thereunder)~~ each of which shall be ~~implemented as an increase to~~ recorded in the ~~Total Revolving~~ Register. Each Additional Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Extension Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.04. (eg) Upon each increase in the ~~Revolving Credit~~ Commitments pursuant to this ~~Section ‎2.25,~~ Section, (i) each ~~Revolving Credit~~ Lender ~~with a Revolving Credit Commitment~~ immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental ~~Revolving Credit Lender in respect of such increase~~Lender, and each such Incremental ~~Revolving Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (1) participations hereunder in Letters of Credit and (2) participations hereunder in Swingline Loans held by each ~~Revolving Credit~~ Lender ~~(including each such Incremental Revolving Credit Lender)~~ will equal ~~its Revolving Credit Percentage. If~~the percentage of the aggregate Commitments of all Lenders represented by such ▇▇▇▇▇▇’s Commitments; and (ii) if, on the date of such increase, there are ~~any~~ Revolving Loans then outstanding, the Borrower shall prepay such Revolving Loans ~~shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from~~ (and pay any additional amounts required pursuant to Section 2.15 in connection therewith) with the proceeds of ~~additional~~ Revolving Loans ~~made hereunder so that~~ from the Incremental Lender(s) to the extent necessary in order that, after giving effect to such prepayments and borrowings, all Revolving Loans ~~are thereafter~~ will be held ratably by the ~~Revolving Credit~~ Lenders ~~according to~~ (including the Incremental Lender(s)) in accordance with their ~~Revolving Credit Percentages (~~respective Commitments after giving effect to the ~~increase in Revolving Credit Commitments~~applicable Incremental Commitment(s)~~, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16~~. The Administrative ~~Agent~~ Agent, the Issuing Banks and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this Section 2.04(g). (h) Any upfront fees payable to the ~~immediately preceding sentence~~Incremental Lenders shall be determined by the Borrower and the applicable Lenders.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Millicom International Cellular Sa), Revolving Credit Agreement (Millicom International Cellular Sa)

Incremental Facilities. ~~(a)~~ The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request (A) prior to the Revolving Commitment Termination Date, ~~request~~ an increase to the existing Revolving Commitments (any such increase, the “Incremental ~~Commitments in~~ Revolving Commitments”) and/or (B) prior to the Tranche B Term Loan Maturity Date, the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount ~~such that, after giving effect thereto,~~ not in excess of $75,000,000 in the aggregate and not less than $25,000,000 individually (or such lesser amount of which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $75,000,000 and all such Incremental Revolving Commitments ~~established at or~~ and Incremental Term Loan Commitments obtained prior to such ~~time does not exceed~~ date), and integral multiples of $~~100,000,000~~5,000,000 in excess of that amount. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent ~~shall agree))~~and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, ~~(iii~~an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) ~~whether~~ to whom the Borrower proposes any portion of such Incremental Revolving Commitments ~~are~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays Bank may elect or decline to arrange such Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan Commitments in its sole discretion and ~~(iv) in~~ any Lender approached to provide all or a portion of the ~~case of any request for~~ Incremental ~~Term Loan Commitments, whether such~~ Revolving Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ 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) the ratio of (i) Consolidated Total Secured Debt after giving effect to such Incremental Revolving Commitment or ~~any Additional Lender.~~ the Incremental Term Loan Commitment, as applicable, to (bii) It pro forma Consolidated Adjusted EBITDA for the latest twelve-month period for which financial statements are then available shall be ~~a condition precedent~~ less than or equal to ~~the effectiveness of any Incremental Commitment that~~ 3.25:1.00; (i2) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (3) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (4) 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 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; (5) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (6) the Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (7) all other fees and expenses owing in respect of such increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; (8) such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall share pari passu in the Guarantees and Collateral; and (9) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term 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) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all~~ each Incremental ~~Commitments have been fully funded and without netting the proceeds~~ Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental ~~Loans),~~ Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall ~~not exceed 2.75:1.00,~~ notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (~~iii~~y) the ~~representations~~ Incremental Revolving Commitments and ~~warranties set forth in Article III and in each other~~ the Incremental Revolving Loan ~~Document shall be true and correct in all material respects (~~Lenders or ~~in all respects, if qualified as to materiality) on and as~~ the Series of ~~the date such~~ Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental~~ Term Loan Commitments and the Incremental Term ~~Loans or Incremental~~ Loan Lenders of such Series, as applicable and (z) in the case of each notice to any Revolving ~~Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant~~ Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to ~~an amendment (an “Incremental Assumption Agreement”) relating to~~ the assignments contemplated by this ~~Agreement~~Section. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall ~~be determined by~~ be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term ~~Lenders~~ Loans and as set forth in the ~~applicable~~ Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental ~~Assumption Agreement; provided~~ Revolving Loans shall be identical to the Revolving Loans and such Incremental Revolving Loan will be documented solely as an increase to the Revolving Commitments, without any change in terms other than any change that is more favorable to the Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall 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) the ~~final maturity date~~ Weighted Average Life to Maturity of ~~any~~ all Incremental Term Loans ~~shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity~~ of ~~the Incremental Term Loans~~ any Series shall be no shorter than the ~~remaining average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~any then-outstanding Class of~~ the existing Term Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of the existing Term Loans, and (iii) if the ~~Incremental Term Loans will rank pari passu with~~ initial “yield” (~~or junior to)~~ for purposes of this Section 2.24, the ~~Tranche B Term Loans in right of payment and~~ “yield” with respect to ~~security and~~ any Loan shall be calculated as the ~~borrower and guarantors~~ sum of the ~~Incremental Term Loans shall be~~ Eurodollar Loan margin on the ~~same as~~ relevant Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the ~~Borrower and Guarantors with respect~~ applicable credit facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to the ~~Term Loans, (iv) if the All-in Yield on such~~ Incremental Term Loans exceeds the ~~initial All-~~“rate” (which for purposes of this Section 2.24 shall be calculated as the Applicable Margin) then in ~~Yield of~~ effect with respect to the ~~Tranche B~~ existing Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.25%, then the Applicable Margin ~~for~~ relating to the ~~Tranche B~~ existing Term Loans and the existing Revolving Loans shall ~~automatically~~ be ~~increased by~~ adjusted so that the ~~Yield Differential, effective upon the making of~~ yield relating to such Incremental Term Loans ~~and (v)~~ does not exceed the rate applicable to the ~~extent~~ existing Term Loans or the ~~terms~~ existing Revolving Loans, as applicable, by more than 0.25%, and if the lowest permissible Adjusted Eurodollar Rate is greater than 2.00% or the lowest permissible Base Rate is greater than 3.00%, for such Incremental Term Loans, the difference between such “floor” and 2.00%, in the case of ~~the~~ Incremental Term Loans ~~are inconsistent~~ with the ~~terms set forth herein (except as set forth~~ Adjusted Eurodollar Rate, or 3.00%, in the case of Incremental Term Loans with Base Rate, shall be used in calculating “yield” for purposes of clause (~~i) through (iv~~iii) above~~), such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent ~~and the Borrower,~~ to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.24. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request (A) prior to the Revolving Commitment Termination Date, ~~request~~ an increase to the existing Revolving Commitments (any such increase, the “Incremental ~~Commitments in~~ Revolving Commitments”) and/or (B) prior to the Tranche BRestatement Effective Date Term Loan Maturity Date, the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”; together with the Incremental Revolving Commitments, the “Incremental Facilities”), by an amount ~~such that~~not in excess of, at any time on and after ~~giving effect thereto~~the Restatement Effective Date, the sum of (i) $100,000,000 in the aggregate minus the aggregate amount of ~~Incremental Commitments established at~~ Indebtedness incurred pursuant to Section 2.24(a)(B)(i) (or ~~prior to such time does not exceed $100,000,000. Such notice shall set forth (i~~any similar incremental “free and clear” basket) ~~the amount~~ of the ~~Incremental Commitments being requested (which shall be in minimum increments of $500,000~~ Second Lien Credit Agreement and ~~a minimum amount of $5,000,000),~~ (ii) an unlimited amount so long as such amount at such time could be incurred without causing the ~~date on which~~ 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 are not netted from Indebtedness for purposes of calculating such First Lien Leverage Ratio); provided that no such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan Commitments shall be in an aggregate amount less than $25,000,000 (except as shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $100,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date pursuant to clause (ivi) above), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the ~~case of any request for~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Commitments or Incremental Term Loan Commitments, ~~whether~~ as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such Incremental Revolving Commitments or Incremental Term Loan Commitments ~~are commitments~~ in its sole discretion and any Lender approached to ~~make additional~~ provide all or a portion of the Incremental Revolving Commitments or Incremental Term ~~Loans of any then outstanding Class~~ Loan Commitments may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ 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) ~~or any Additional Lender. (b) It shall be a condition precedent~~ subject to the ~~effectiveness of any Incremental Commitment that (i)~~ terms and conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental 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 Series of Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (3) subject to 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 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 effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (6) all other fees and expenses owing in respect of such 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) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. (c) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term 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) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all~~ each Incremental ~~Commitments have been fully funded and without netting the proceeds~~ Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental ~~Loans),~~ Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. (d) The Administrative Agent shall ~~not exceed 2.75:1.00,~~ notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (~~iii~~yx) the ~~representations~~ Incremental Revolving Commitments and ~~warranties set forth in Article III and in each other~~ the Incremental Revolving Loan ~~Document shall be true and correct in all material respects (~~Lenders or ~~in all respects, if qualified as to materiality) on and as~~ the Series of ~~the date such~~ Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental~~ Term Loan Commitments and the Incremental Term ~~Loans or Incremental~~ Loan Lenders of such Series, as applicable and (zy) in the case of each notice to any Revolving ~~Loans thereunder shall comply with Section 2.25(c)~~Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. (ce) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement.~~ The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall ~~be determined by~~ be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term ~~Lenders~~ Loans and as set forth in the ~~applicable~~ Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental ~~Assumption Agreement; provided~~ Revolving Loans shall be identical to the Revolving Loans and such Incremental Revolving Loans will be documented solely as an increase to the Revolving Commitments, without any change in terms other than any change that is more favorable to the Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall be empowered to, on behalf of all the Revolving Lenders, execute an amendment to the definitive documentation relating to the Revolving Loans in order to give effect to such a change more favorable to the Revolving Lenders). In any event (i) the ~~final maturity date~~ Weighted Average Life to Maturity of ~~any~~ all Incremental Term Loans ~~shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity~~ of ~~the Incremental Term Loans~~ any Series shall be no shorter than the ~~remaining average life~~ Weighted Average Life to Maturity of the existing Term Loans (except by virtue of amortization or prepayment of such existing Term Loans prior to such date of determination), (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of ~~any then-outstanding Class of~~ the existing Term Loans, and (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the ~~All-in Yield on such Incremental Term Loans~~ “yield” of any relevant Loan exceeds the ~~initial All-in Yield of~~ “yield” on the ~~Tranche B~~ existing Term Loans by more than 50 basis ~~points (~~points, the ~~amount of~~ applicable margins for the existing Term Loans shall be increased to the extent necessary so that the “yield” on such ~~excess above~~ Term Loans is 50 basis points ~~being referred to herein as~~ less than the “~~Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of~~ yield” on such relevant Incremental Term Loans (for purposes of this paragraph “yield” shall be reasonably determined by the Administrative Agent (w) to include the applicable interest rate margin, (x) to exclude arrangement, commitment, structuring or other fees payable to the Joint Lead Arrangers (or their respective Affiliates) in connection with such Loans or to one or more arrangers (or their Affiliates) of any such Loan that are not shared with all Lenders providing such Loans, (y) to include original issue discount and upfront fees paid to the Lenders thereunder (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity), and (vz) to ~~the extent the terms of~~ include, if the Incremental Term Loans ~~are inconsistent with~~ include an interest rate floor greater than the ~~terms set forth herein (except as set forth in clause (i) through (iv) above)~~applicable interest rate floor under the existing Term Loans, such ~~terms shall be reasonably satisfactory~~ differential between interest rate floors equated to the ~~Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as~~ applicable interest rate margin for purposes of determining whether an increase to the ~~Total Revolving Credit Commitments and~~ interest rate margin under the existing Term Loans shall be ~~on terms identical~~ required, but only to the extent an increase in the interest rate floor in the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing ~~Revolving Credit Commitments (and the Revolving~~ Term Loans ~~thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender~~ shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all be increased to the extent ~~reasonably requested by the Administrative Agent or the other parties to~~ of such ~~Incremental Assumption Agreement~~differential between interest rate floors). ~~The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ CreditLoan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent ~~and the Borrower,~~ to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.24. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

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

Incremental Facilities. (a) ~~The Borrower may~~After the 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 Administrative Agent, may request (i) the ~~Administrative Agent from time~~ establishment of one or more additional tranches of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (ii) increases in the Revolving Commitments (the “Incremental Revolving Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (i) each such request shall be for not less than $25,000,000 (or such lesser amount up to ~~time, request Incremental Commitments in an amount such that,~~ the Maximum Facilities Amount) and (ii) after giving effect ~~thereto~~to each such request, the aggregate amount (the “Maximum Facilities Amount”) of ~~Incremental~~ outstanding Term Loans and Revolving Commitments ~~established at or prior to such time does~~ shall not exceed $~~100,000,000~~1,500,000,000. ~~Such~~ Each such notice shall ~~set forth~~ specify the date (ieach, an “Increased Amount Date”) on which the ~~amount of~~ Borrower proposes that the Incremental Loan Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new ClassAgent. The Borrower may ~~seek~~ approach any Lender or any Person to provide all or a portion of the Incremental Loan Commitments; provided that (i) no Lender will be required to provide such Incremental Loan Commitment and (ii) any entity providing all or a portion of the Incremental Loan Commitments ~~from existing Lenders (each~~ other than a Lender, an affiliate of ~~which~~ a Lender or an Approved Fund, shall be ~~entitled~~ reasonably acceptable to ~~agree~~ the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or ~~decline to participate in its sole discretion) or any Additional Lender~~delayed). (b) It In each case, such Incremental Loan Commitments shall ~~be a condition precedent to~~ become effective as of the ~~effectiveness of any Incremental Commitment~~ applicable Increased Amount Date, provided that (i) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Loan Commitments, (ii) the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all~~ Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental ~~Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00~~Loan Commitments, (iii) the ~~representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as~~ weighted average life to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity ~~date~~ of any Incremental Term ~~Loans~~ Loan shall be ~~no earlier~~ greater than or equal to the ~~Latest Maturity Date, (ii) the~~ then-remaining weighted average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Extended Term Loans, (iv) if the ~~All~~interest rate margin in respect of any Incremental Revolving Loans that is in effect on the 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-~~in Yield on such Incremental Term Loans exceeds the initial All-in Yield~~ year life to maturity) paid to all of the ~~Tranche B Term Loans by more than 50 basis points~~ Incremental Revolving Lenders in connection therewith) shall not exceed the sum of (~~the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then~~ x) the Applicable Margin for the ~~Tranche B Term~~ 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 ~~automatically~~ 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 by so that the ~~Yield Differential~~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, ~~effective upon~~ (v) unless the ~~making~~ final maturity date of such Incremental Term Loans ~~and~~ is at least one year later than the final maturity date of the Extended Term Loans, the interest rate margin in respect of such Incremental Term Loans (v) giving effect to ~~the extent the terms~~ OID or upfront fees paid to all of the Incremental Term ~~Loans are inconsistent~~ Lenders in connection therewith (with fees and OID being equated to interest rate in the ~~terms~~ manner set forth ~~herein~~ above)) shall not exceed the sum of (~~except as~~ x) the Applicable Margin for the Extended Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Extended Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or upfront fees paid to all of the Incremental Term Lenders in connection therewith) is no greater than the sum of (x) the Applicable Margin for the Extended Term Loans and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, (vi) if the final maturity date of such Incremental Term Loans is at least one year later than the final maturity date of the Extended Term Loans, the interest rate margin in respect of such Incremental Term Loans (giving effect to OID or upfront fees paid to all of the Incremental Term Lenders in connection therewith (with fees and OID being equated to interest rate in the manner set forth ~~in clause (i) through (iv)~~ above)) shall not exceed by more than 25 bps the sum of (x) the Applicable Margin for the Extended Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 25 bps the sum of such Applicable Margin and such fees, such ~~terms~~ Applicable Margin for the Extended Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or upfront fees paid to all of the Incremental Term Lenders in connection therewith) is no greater than the sum of (x) the Applicable Margin for the Extended Term Loans, (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans and (z) 25 bps, and (vii) the Incremental Loan Commitments shall be effected pursuant to one or more incremental commitment agreements in a form reasonably ~~satisfactory~~ acceptable to the Administrative ~~Agent~~Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Term Loan Lender and the Administrative Agent pursuant to which such Incremental Term Loan Lender agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement. (c) On any Increased Amount Date on which Incremental Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans ~~thereunder)~~ and Incremental Revolving Commitments shall be ~~implemented as an increase to the Total Revolving Credit Commitments and shall be on terms~~ identical to the ~~existing~~ Revolving ~~Credit Commitments (~~Loans and the Revolving ~~Loans thereunder)~~Commitments. (d) ~~In connection with~~ On any Increased Amount Date on which any Incremental ~~Commitments~~Term Loan Commitments are effected, subject to the ~~Borrower~~satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the ~~Administrative Agent~~ Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each ~~applicable~~ Incremental Term Loan Lender shall ~~execute and deliver~~ become a Lender hereunder with respect to the ~~Administrative Agent an~~ Incremental ~~Assumption Agreement providing for such Incremental Commitments,~~ Term Loan Commitment and ~~such other documentation as the Administrative Agent shall reasonably specify to evidence~~ the Incremental Term Loans made pursuant thereto. (e) Each Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.23. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

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

Incremental Facilities. (a) The Borrower may, by written notice to the ~~Administrative~~ Agent from time to time, request Incremental Commitments in an amount for all such ~~that, after giving effect thereto, the aggregate amount of~~ Incremental Commitments ~~established~~ not to exceed the Incremental Facility Amount at ~~or prior to~~ such time ~~does~~ from one or more Incremental Lenders, which may include any existing Lender or any Eligible Assignee (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that (i) any Incremental Revolving Credit Commitments (and the Incremental Revolving Credit Loans thereunder) shall be implemented as an increase to the total Revolving Credit Commitments and shall [[3666665]] have identical terms as the Revolving Credit Commitments (and the Revolving Credit Loans thereunder) and (ii) each Incremental Lender shall be subject to the approval of the Agent (and, in the case of an Incremental Revolving Credit Lender, each Issuing Bank) (which approvals shall not ~~exceed $100,000,000~~be unreasonably withheld or delayed). Such notice shall set forth (ix) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 5,000,000 and a minimum amount of $~~5,000,000~~10,000,000 or such lesser amount equal to the remaining Incremental Facility Amount, as applicable), (iiy) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (ivz) in the case of ~~any request for~~ Incremental Term ~~Loan~~ Commitments, whether such Incremental Term ~~Loan~~ Commitments are (i) commitments to make additional Term Loans ~~of any then outstanding Class~~ or (ii) commitments to make new A Type Term Loans ~~of a new Class. The Borrower may seek~~ (as defined below) with terms different from the Term Loans (such loans, “Specified Incremental ~~Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender~~Term Loans” and such commitments “Specified Incremental Term Commitments”). (b) It The Borrower and each applicable Incremental Lender shall ~~be a condition precedent~~ execute and deliver to the ~~effectiveness~~ Agent an Incremental Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall~~ to be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreementmade thereunder; provided that (i1)(A)(i) the final maturity date of any Specified Incremental Term Loans shall be no earlier than the ~~Latest~~ Term Loan Maturity ~~Date,~~ Date and (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~the~~ any Specified Incremental Term Loans shall be no shorter than the ~~remaining average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~any then-outstanding Class of~~ the Term Loans, ; (~~iii~~B) if the initial yield on any such Specified Incremental Term Loans ~~will rank pari passu with~~ that is incurred on or prior to the date that is 12 months after the Closing Date (~~or junior to~~as such yield is determined by the Agent by adding (x) the ~~Tranche B Term~~ margin above the Eurocurrency Rate on such Loans ~~in right of payment~~ (which shall be increased by the amount that any interest rate “floor” applicable to such Loans on the date such Loans are made would exceed the Eurocurrency Rate for a three-month Interest Period commencing on such date) and ~~with respect to security and~~ (y) if such Loans are initially made at a discount or the ~~borrower and guarantors~~ Lenders making the same receive a fee directly or indirectly from Holdings or any of the ~~Incremental Term Loans shall be~~ Subsidiaries for doing so (but excluding the ~~same~~ effect of any bona fide arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders thereof) (the amount of such discount or fee, expressed as ~~the Borrower and Guarantors with respect to the Term~~ a percentage of such Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (ivx) if the ~~All-in Yield on~~ Weighted Average Life to Maturity of such ~~Incremental Term~~ Loans and (y) four) exceeds ~~the initial All-in Yield of the Tranche B Term Loans~~ by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)) the sum of (x) the Applicable Margin then in effect for Eurocurrency Rate Term Loans, and (y) the amount of the OID initially paid in respect of the Term Loans, divided by four, then the Applicable Margin then in effect for ~~the Tranche B~~ Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Specified Incremental Term Loans; and (C) during a Lien Suspension Period, no Incremental Term Loans shall be secured; and (v2) to the ~~extent the~~ other terms of ~~the~~ any Specified Incremental Term Loans ~~are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms~~ shall be reasonably satisfactory to the ~~Administrative~~ Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions For purposes of this Section ~~2.25~~2.23, ~~including~~ “A Type Term Loans” means any ~~amendments necessary to establish~~ term loans which (w) have scheduled amortization in excess of 1.00% per annum, (x) have a final maturity of five years or less, (y) other than during a Lien Suspension Period, are secured by some or all of the ~~Incremental Term Loan Commitments~~ Collateral on an equal and ~~Incremental Term Loans~~ ratable basis with the Obligations and Obligations (as ~~a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate~~ defined in the ~~reasonable opinion~~ Spinco Credit Agreement) and (z) are guaranteed by some or all of the ~~Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~Guarantors. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (Leidos Holdings, Inc.)

Incremental Facilities. (a) The ~~Borrower may~~Company may on one or more occasions after the Closing Date, by written notice to the Administrative ~~Agent from time to time~~Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~in an amount such that, after giving effect thereto,~~ and/or (ii) the establishment of Incremental Term Commitments; provided that the aggregate amount of the Incremental Commitments established ~~at or prior to~~ under this Section 2.21 on any date, together with the aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) on such ~~time does~~ date, shall not exceed ~~$100,000,000~~an amount equal to the Base Incremental Amount in effect on such date, and an additional amount subject to the Maximum Incremental Amount as of such date. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term ~~Loan Commitments~~ Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (ivy) any Person that the Company proposes to become an Incremental Lender, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of ~~any request for~~ an Incremental ~~Term Loan Commitments~~Revolving Commitment, ~~whether such Incremental Term Loan Commitments are commitments~~ must be reasonably satisfactory to ~~make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (~~the Administrative Agent, each ~~of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional~~ Issuing Bank and the Swingline Lender). (b) ~~It shall be a condition precedent to the effectiveness~~ 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) no Default or Event of Default~~ the upfront fees applicable to any Incremental Revolving Facility shall ~~have occurred~~ be as determined by the Company and ~~be continuing immediately prior to or immediately after giving effect to~~ the Incremental Revolving Lenders providing such Incremental ~~Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ Facility. The terms and ~~without netting the proceeds~~ conditions of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments Term Facility and the Incremental Term Loans ~~or Incremental Revolving Loans~~ to be made thereunder shall ~~comply with Section 2.25(c). (c)~~ be, except as otherwise set forth herein or in the applicable Incremental ~~Commitments shall be established pursuant~~ Facility Amendment, identical to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ those of the Term Commitments and the Term Loans; provided that (i) the upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the ~~Borrower~~ Company and the Incremental Term Lenders ~~and set forth in~~ providing the ~~applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any~~ relevant Incremental Term ~~Loans shall be no earlier than the Latest Maturity Date~~Commitments, (ii) except in the case of an Incremental Term Facility effected as an increase to an existing Class of Term Loans, the weighted average life to maturity of ~~the~~ any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans with the latest Maturity Date, (iii) if the weighted average yield relating to any ~~then-outstanding Class~~ 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% (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase in the interest rate floor applicable to the Initial Term ~~Loans~~Loans would 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 yield relating to such Incremental Term Loans shall not exceed the weighted average yield relating to the Initial Term Loans by more than 0.50% and (iv) no Incremental Term Maturity Date shall be earlier than the Term Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Liens on the Collateral securing the other Loan Document Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company, the 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) 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 full amount of such Incremental Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security~~ Commitments and the ~~borrower~~ related transactions under this Section 2.21 and ~~guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans,~~ (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans Company shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing for~~ such ~~Incremental Commitments~~legal opinions, board resolutions, secretary’s certificates, officer’s certificates and ~~such~~ other ~~documentation~~ documents as ~~the Administrative Agent~~ shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably be requested by the Administrative Agent ~~or the other parties to~~ in connection with any such transaction. Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement~~ Facility Amendment may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this Section ~~2.25~~2.21. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~including any amendments necessary~~ (i) such Incremental Lender shall be deemed to ~~establish the Incremental Term Loan~~ be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Commitments, each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned~~ shall assign to each Incremental Revolving ~~Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Revolving Commitment, and each such Incremental Revolving ~~Credit~~ Lender ~~will automatically~~ shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Revolving Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each~~ all the Revolving ~~Credit Lender~~ Lenders (including ~~each~~ such Incremental Revolving ~~Credit Lender~~Lenders) ~~will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon~~ ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Credit~~ Commitment. (f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment ~~be prepaid~~ of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Company referred to in Section 2.21(a) and of ~~additional~~ 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 ~~Loans made hereunder so that~~ Commitments, of the Applicable Percentages of the Revolving ~~Loans are thereafter held by the Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the assignments required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~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 at any time after the Closing Date, the Borrowers may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request (A) an increase to the existing Revolving Commitments (any such increase, ~~request~~ the “Incremental ~~Commitments~~ Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”, together with the Incremental Revolving Commitments, the “Incremental Commitments”), in an ~~amount such that, after giving effect thereto, the~~ aggregate amount not to exceed the greater of ~~Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (i) $1,150,000,0001,365,000,000 and (ii) 100% of Consolidated EBITDA for the ~~amount of~~ 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 the date (each, an “Increased Amount Date”) on which the applicable Borrowers propose that such Incremental Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than five (ii5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrowers, to arrange a syndicate of Lenders willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments ~~are requested~~ on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to ~~become effective~~ provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and (z) any Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrowers and the Administrative Agent, and, if an Incremental Revolving Commitment, the Issuing Bank and the Swingline Lender (each of which approvals shall not be ~~less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)~~unreasonably withheld), ~~(iii) whether~~ unless such Incremental ~~Commitments are~~ Revolving Loan Lender or Incremental Term Loan Lender is an existing Lender. The terms and provisions of any Incremental Revolving ~~Credit~~ Commitments or shall be identical to the existing Revolving Commitments. The terms and provisions of any Incremental Term Loan Commitments and ~~(iv) in~~ any Incremental Term Loans shall provide that the ~~case~~ maturity date of any ~~request for~~ Incremental Term Loan ~~Commitments, whether~~ shall be no earlier than the Revolving Maturity Date (but may have scheduled amortization payments prior to such ~~Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~date). The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment ~~that~~ shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall ~~have occurred~~ exist and ~~be continuing immediately prior to or immediately after giving effect to such Incremental Commitments,~~ (ii) as of the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments~~ last day of the most recent month for which financial statements have been ~~fully funded and without netting~~ delivered pursuant to Section 5.01, the ~~proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ Company would have been in compliance with the Financial Covenants that are applicable at such time; (~~iii~~y) the representations and warranties ~~set forth~~ made or deemed made by the Borrowers in ~~Article III and in each other~~ any Loan 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 (or in which case such representations and warranties shall have been true and correct in all ~~respects, if qualified as to materiality)~~ material respects on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (ivz) the ~~terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder~~ Administrative Agent shall ~~comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ have received each of the ~~Incremental Term Loans shall be determined by the Borrower~~ following, in form and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be substance reasonably satisfactory to the Administrative Agent~~. Any~~ : (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 ~~Revolving Credit Commitment~~ Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Subsidiary Guarantor authorizing the Subsidiary Guaranty by such Subsidiary Guarantor of such Incremental Commitments; (ii) a customary opinion of counsel to the Borrowers and the ~~Incremental Revolving Loans thereunder) shall~~ Subsidiary Guarantors (which may be ~~implemented~~ in substantially the same form as ~~an increase~~ delivered on the Closing Date and may be delivered by internal counsel of the Borrowers), and addressed to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and the Lenders, and (iii) 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 ~~applicable~~ 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 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 ~~execute~~ become a Lender with respect to its Incremental Revolving Commitment and ~~deliver~~ all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the ~~Administrative Agent~~ satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender shall make a Loan to the applicable Borrowers (an “Incremental ~~Assumption Agreement providing for such~~ Term Loan”) in an amount equal to its Incremental ~~Commitments~~Term Loan Commitment, and ~~such other documentation as the Administrative Agent~~ (ii) each Incremental Term Loan Lender shall ~~reasonably specify~~ become a Lender hereunder with respect to ~~evidence~~ the Incremental Term Loan Commitment ~~of each~~ and the Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption AgreementTerm Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly ~~notify~~ upon receipt of a Borrower’s notice of each ~~Lender~~ Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the 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, in each case subject to the ~~effectiveness~~ assignments contemplated by this Section. The upfront fees payable to the Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders shall be determined by the applicable Borrowers and the applicable Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders. The Incremental Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the applicable Borrowers and the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of ~~each Incremental Assumption Agreement~~which shall be recorded in the Register. ~~Any Incremental Assumption Agreement~~ Each Additional Credit Extension Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent and the ~~Borrower~~Company, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.04. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

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

Incremental Facilities. (a) ~~The~~ So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower ~~may~~Representative shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Existing Tranche of Existing Revolving Commitments (the “Supplemental Revolving Commitments”), (iv) to request new commitments under one or more new revolving facilities to be included in ~~an amount such~~ this Agreement (the “Incremental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after giving effect thereto,~~ (i) the aggregate amount of Incremental Commitments ~~established~~ permitted pursuant to this Subsection 2.8 shall not exceed, at ~~or prior~~ the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such ~~time does not exceed $100,000,000. Such notice shall set forth (i) the~~ Indebtedness to refinancing other Indebtedness), an amount ~~of the Incremental Commitments being requested (which shall~~ that could then be Incurred under this Agreement in ~~minimum increments of $500,000 and a minimum amount of $5,000,000~~compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the ~~date on which such~~ definition of “Maximum Incremental ~~Commitments are requested~~ Facilities Amount,” the Borrower Representative shall have delivered a certificate to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative ~~Agent shall agree))~~Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) ~~whether~~ if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount,” the Borrower Representative 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 ~~Commitments are~~ Commitment. Any loans made in respect of any such Incremental ~~Revolving Credit Commitments or Incremental~~ Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be made in Dollars, Euro, Sterling and such other currencies as mutually agreed by the Parent Borrower and the lenders thereunder and shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (~~iv)~~ in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments ~~from existing Lenders~~ denominated in Dollars) or in a minimum aggregate amount of at least €10,000,000 and in integral multiples of €5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Euro) (or, in each ~~of which shall be entitled~~ case, in such lower minimum amounts or multiples as agreed to ~~agree or decline to participate~~ by the Administrative Agent in its ~~sole~~ reasonable discretion~~) or any Additional Lender~~). (b) It Each request from the Borrower Representative pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be ~~a condition precedent to~~ made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Incremental Lender,” and the ~~effectiveness of~~ Additional Incremental Lenders together with any ~~Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such~~ existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (iiin the case of a Supplemental Revolving Commitment) the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ consent of any Issuing Bank (in each case, such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental ~~Loans~~Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), ~~shall not exceed 2.75:1.00~~mutatis mutandis, ~~(iii)~~ to the ~~representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects,~~ same extent as if ~~qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of~~ such Incremental Commitments and ~~the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~related Obligations had been obtained by such Lender by way of assignment). (c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrower Representative and each increasing Lender substantially in the form attached hereto as Exhibit I-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall ~~be established~~ become commitments under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Commitment Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent Borrowers and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Lender. An Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other Lender, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the ~~Administrative Agent~~ Borrower Representative and the ~~Borrower~~Administrative Agent, to effect the provisions of this ~~Section 2.25~~Subsection 2.8; provided, ~~including any amendments necessary to establish~~ however, that (i) (A) the Incremental ~~Term~~ Commitments will not be guaranteed by any Subsidiary of the Parent Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower Representative’s option) junior basis by the same Collateral securing the First Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement, the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower Representative’s option) junior to the First Lien Loan Document Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the First Lien Loan Document Obligations and (II) so long as any Initial Term Loans ~~as a new Class~~ are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or ~~tranche~~ Person the acquisition of ~~Term~~ which was financed, all or in part, with Incremental Loans ~~and~~ provided pursuant to such ~~other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent~~ Incremental Commitment Amendment and the ~~Borrower in connection with the establishment~~ disposition of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender which was contemplated by any definitive agreement in respect of such ~~increase~~acquisition) or Recovery Event or from Excess Cash Flow, ~~and each such Incremental Revolving Credit Lender will automatically and without further act be deemed~~ to ~~have assumed, a portion~~ the extent the Net Cash Proceeds of such ~~existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit~~ Asset Disposition or Recovery Event or such ~~that, after giving effect~~ Excess Cash Flow are required to ~~each such deemed assignment and assumption of participations,~~ be applied to repay the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. IfInitial Term Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the ~~date of such increase, there are any Revolving~~ Initial Term Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to ~~the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and~~ any ~~costs incurred by any Revolving Credit Lender~~ amendment in accordance with ~~Section 2.16. The Administrative Agent~~ Subsection 11.1(d)(vii)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the Initial Revolving Maturity Date; (iv) the maturity date and the ~~Lenders hereby agree that~~ weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the ~~minimum borrowing~~case may be, ~~pro rata borrowing~~ the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (v) the interest rate margins and ~~pro rata payment requirements contained elsewhere in this Agreement shall not apply~~ (subject to clause (iv) above) amortization schedule applicable to the ~~transactions effected~~ loans made pursuant to the ~~immediately preceding sentence.~~Incremental Commitments shall be determined by the Borrower Representative and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any term loans Incurred by the Borrowers under any Incremental Term Loan Commitment, made on or prior to the 18-month anniversary of the Closing Date, are higher than the applicable interest rate margin for the Initial Dollar Term Loans (in the case of term loans denominated Dollars) or the Initial Euro Term Loans (in the case of term loans denominated in Euro) by more than 50 basis points, then the Applicable Margin for the applicable Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the applicable Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrowers to the Lenders under such Initial Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity) (provided that, if such Initial Term Loans are issued in a manner such that all such Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the applicable Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the applicable Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such Initial Term Loans shall be required, to the extent an increase in the interest rate floor for such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Initial Term Loans shall be increased by such amount; (vi) such Incremental Commitment Amendment may

Appears in 1 contract

Sources: First Lien Credit Agreement (Mauser Group B.V.)

Incremental Facilities. ~~(a) The Borrower may~~On one or more occasions at any time after the Closing Date, the Borrowers may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request an increase to the existing Commitments (any such increase, ~~request~~ the “Incremental Commitments”), by up to an aggregate amount not to exceed AUD550,000,000 for all Incremental Commitments ~~in an amount such that, after giving effect thereto,~~ (so that the ~~aggregate~~ sum of the Commitments plus the principal amount of ~~Incremental Commitments established at or prior to such time~~ Delayed Draw Term Loans made hereunder does not exceed ~~$100,000,000~~AUD1,750,000,000). ~~Such~~ Each such notice shall ~~set forth~~ specify the date (ieach, an “Increased Amount Date”) on which the ~~amount of the~~ Borrowers propose that such Incremental Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrowers, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments ~~are requested to become effective (which~~ on any Increased Amount Date shall ~~not~~ be ~~less than 10 Business Days nor more than 60 days after~~ in the ~~date~~ minimum aggregate amount of ~~such notice (or such longer or shorter period as the Administrative Agent shall agree))~~AUD25,000,000, (~~iii~~y) ~~whether such~~ any Lender approached to provide all or a portion of the Incremental Commitments ~~are Incremental Revolving Credit Commitments~~ may elect or ~~Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments~~decline, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion, to provide an Incremental 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 within such ten (10) ~~or any Additional Lender. (b) It~~ Business Day period after its receipt of such request, such Lender shall be deemed to have declined to provide such Incremental Commitments, and (z) any Lender or other Person that is an Eligible Assignee (each, a ~~condition precedent~~ “New Lender”) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrowers and the Administrative Agent (such approval not to be unreasonably withheld or delayed). The terms and provisions of any Incremental Commitments shall be identical to the existing Commitments. The effectiveness of any Incremental ~~Commitment that~~ Commitments and the availability of any borrowings under any such Incremental Commitments shall be subject to the satisfaction of the following conditions precedent: (i) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (x) no Default or Event of Default shall exist and (y) as of the last day of the most recent calendar quarter for which financial statements have ~~occurred and be continuing immediately prior~~ been delivered pursuant to ~~or immediately after giving effect to such Incremental Commitments~~Section 6.1, the Borrowers would have been in compliance with the financial covenants set forth in Section 7.1; (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties ~~set forth~~ made or deemed made by the Borrowers in ~~Article III and in each other~~ 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~~, if qualified as~~ ) on the effective date of such Incremental Commitments except to ~~materiality)~~ 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 ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ earlier date~~, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors~~ Administrative Agent shall have received each of the ~~Incremental Term Loans shall be the same as the Borrower~~ following, in form and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be substance reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment~~ : (~~and the Incremental Revolving Loans thereunder~~x) ~~shall be implemented as an increase~~ if not previously delivered to the ~~Total Revolving Credit Commitments and shall be on terms identical~~ Administrative Agent, copies certified by the Secretary or Assistant Secretary (or, in the case of MPT Australia organized under the laws of Australia (or any of its jurisdictions), a director) of all corporate or other necessary action taken by each of the Borrowers to ~~the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any~~ authorize such Incremental Commitments, (y) customary opinions of counsel (which may be in substantially the ~~Borrower,~~ same forms as delivered on the Closing Date) addressed to the Administrative Agent and ~~each applicable Incremental~~ the Lenders, and (z) if requested by any New Lender, Notes executed by the Borrowers, payable to such New Lender; and (iv) (x) upon the reasonable request of any Lender ~~shall execute and deliver~~ or New Lender made at least ten days prior to the ~~Administrative Agent an Incremental Assumption Agreement providing for~~ applicable Increased Amount Date, the Borrowers shall have provided to such ~~Incremental Commitments~~Lender or New Lender, and such Lender or New Lender shall be reasonably satisfied with, the documentation and other ~~documentation~~ information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, the Australian AML Act and the Beneficial Ownership Regulation, in each case at least five days prior to the Increased Amount Date and (y) at least five days prior to the applicable Increased Amount Date, any Loan Party that qualifies as a “legal entity customer” under the ~~Administrative Agent~~ Beneficial Ownership Regulation shall ~~reasonably specify~~ have delivered, to ~~evidence~~ each Lender or New Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. On any Increased Amount Date during the Delayed Draw Term Commitment Period, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Delayed Draw Term Lenders shall assign to each of the New Lenders, and each of the New Lenders shall purchase from each of the Delayed Draw Term Lenders, at the principal amount thereof (together with accrued interest), such interests in the Delayed Draw Term Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Delayed Draw Term Loans will be held by existing Delayed Draw Term Lenders and New Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Delayed Draw Term Commitments, (b) each Incremental Commitment shall be deemed for all purposes a Delayed Draw Term Commitment and each Loan made thereunder shall be deemed, for all purposes, a Delayed Draw Term Loan and (c) each New Lender shall become a Lender with respect to its Incremental Commitment and all matters relating thereto. On any Increased Amount Date on or after the Delayed Draw Term Commitment Period, subject to the satisfaction of the foregoing terms and conditions, (i) each New Lender shall make a Loan to the Borrowers (a “New Loan”) in an amount equal to its Incremental Commitment, and (ii) each New Lender shall become a Lender hereunder with respect to the Incremental Commitment ~~of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel~~ and ~~other documentation consistent with~~ the ~~conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement~~New Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly ~~notify~~ upon receipt of the Borrowers’ notice of each ~~Lender as~~ Increased Amount Date and in respect thereof (y) the Incremental Commitments and the New Lenders, and (z) in the case of each notice during the Delayed Draw Term Commitment Period, the respective interests in such Delayed Draw Term Lender’s Delayed Draw Term Loans, in each case subject to the ~~effectiveness~~ assignments contemplated by this paragraph. The fees payable by the Borrowers to Lenders upon any such Incremental Commitments shall be agreed upon by the Administrative Agent and the Borrowers at the time of such increase. The Incremental Commitments shall be evidenced pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrowers, the New Lenders and the Administrative Agent, and each ~~Incremental Assumption Agreement~~of which shall be recorded in the Register. ~~Any Incremental Assumption Agreement~~ Each Additional Credit Extension Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25~~2.23, ~~including any amendments necessary~~ subject to ~~establish~~ the ~~Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion~~ approval of the ~~Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25.~~ Borrowers (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement approval shall not ~~apply to the transactions effected pursuant to the immediately preceding sentence~~be unreasonably withheld or delayed).

Appears in 1 contract

Sources: Syndicated Facility Agreement (MPT Operating Partnership, L.P.)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) one or more additional tranches of tranche A term loans (the ~~amount of~~ “Incremental Tranche A Term Loans”) or tranche B term loans (the “Incremental Tranche B Term Loans”, and together with the Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Tranche A Term Loans, the “Incremental Term Loans”), (ii) one or more increases in the ~~date on which~~ amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (~~Revolving Credit Commitment Increase”) or ~~such longer or shorter period as the Administrative Agent shall agree)),~~ (iii) ~~whether such~~ one or more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments”, and together with the Incremental ~~Commitments are~~ Term Loans and the Incremental Revolving Credit ~~Commitments or~~ Commitment Increases, the “Incremental ~~Term Loan Commitments~~ Facilities” and ~~(iv)~~ the commitments in respect thereof are referred to as the ~~case~~ “Incremental Commitments”); provided that both at the time of any such request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent and after giving effect to the effectiveness of any Incremental ~~Commitment that~~ Agreement referred to below, except as set forth in the proviso to clause (ib) below, no ~~Default or~~ Event of Default shall ~~have occurred~~ exist and ~~be continuing immediately prior to~~ at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or ~~immediately~~ Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided, further, that after giving effect to the incurrence of such Incremental ~~Commitments~~Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), ~~(ii)~~ the ~~Total Leverage Ratio, determined~~ Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period. (b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, of the sum of (A) $500,000,000 (minus the aggregate principal amount of Permitted Additional Debt incurred under Section 10.1(v)(ii)), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments ~~have been~~ then outstanding were fully ~~funded~~ drawn)) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period, that is no greater than 2.25:1.0 (the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit and without ~~netting~~ regard to whether an Event of Default has occurred and is continuing, to the ~~proceeds~~ extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of ~~any~~ incurrence of such Incremental ~~Loans), shall not exceed 2.75:1.00, (iii)~~ Term Loans to prepay Term Loans in accordance with the ~~representations and warranties~~ procedures set forth in ~~Article III~~ Section 5.2(a)(i) and subject to the payment of premiums set forth in ~~each other Loan Document~~ Section 5.1(b), if applicable, and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall be ~~true and correct~~ permanently reduced in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply accordance with Section ~~2.25(c)~~5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided. (c) (i) (A) The Incremental ~~Commitments~~ Tranche A Term Loans (i) shall ~~be established pursuant~~ rank pari passu in right of payment and of security with the Initial Tranche A Term Loans, (ii) shall not mature earlier than the Initial Tranche A Term Loan Maturity Date, (iii) shall not have a shorter Weighted Average Life to Maturity than the Initial Tranche A Term Loan Facility, (iv) shall have an ~~amendment~~ amortization schedule (~~an “Incremental Assumption Agreement”~~subject to clause (iii) ~~relating to this Agreement. The terms of~~ above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the Incremental Tranche A Term Loans ~~shall be~~ as determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity lenders of the Incremental ~~Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the~~ Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental A Term Loans and (v) ~~to the extent the~~ may otherwise have terms and conditions different from those of the ~~Incremental~~ Initial Tranche A Term Loans ~~are inconsistent with~~ and (B) the ~~terms set forth herein (except as set forth in clause~~ Incremental Tranche B Term Loans (i) ~~through~~ shall rank pari passu in right of payment and of security with the Initial Tranche B Term Loans, (ii) shall not mature earlier than the Initial Tranche B Term Loan Maturity Date, (iii) shall not have a shorter Weighted Average Life to Maturity than the Initial Tranche B Term Loan Facility, (iv) shall have an amortization schedule (subject to clause (iii) above), ~~such~~ and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the Incremental Tranche B Term Loans as determined by the Borrower and the lenders of the Incremental Tranche B Term Loans and (v) may otherwise have terms and conditions different from those of the Initial Tranche B Term Loans; provided that (except with respect to matters contemplated by subclauses (ii), (iii) and (iv) in clauses (A) and (B) above) any differences shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (LPL Investment Holdings Inc.)

Incremental Facilities. (a) ~~The~~ Either Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from~~ at any time after the Restatement Date elect to ~~time~~request (A) prior to the Revolving Commitment Termination Date, ~~request~~ an increase to the existing Revolving Commitments (any such increase, the “Incremental ~~Commitments in~~ Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount ~~such that, after giving effect thereto,~~ not in excess of $600,000,000 in the aggregate and, in each case, not less than $25,000,000 individually (or such lesser amount ~~of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (~~which shall be ~~in minimum increments~~ approved by the Administrative Agent), and integral multiples of $~~500,000 and~~ 10,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent ~~shall agree))~~and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, ~~(iii~~an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) ~~whether~~ to whom such Borrower proposes any portion of such Incremental Revolving Commitments ~~are~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan Commitments in its sole discretion and ~~(iv) in~~ any Lender approached to provide all or a portion of the ~~case of any request for~~ Incremental ~~Term Loan Commitments, whether such~~ Revolving Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion) , to provide an Incremental Revolving Commitment or ~~any Additional Lender. (b) It~~ an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall ~~be a condition precedent to the effectiveness~~ become effective as of ~~any Incremental Commitment~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (3) the Parent shall be in pro forma compliance 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 Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable and the Parent’s Senior Secured Leverage Ratio as of such day, shall not be greater than 3.50:1.00; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent in connection with any such transaction and (7) the applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. (b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan of the applicable Class and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. (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 Borrowers (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 Representative’s notice of each Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, as applicable and (z) in the case of each notice to any applicable Lender with Revolving Commitments, the respective interests in such 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 and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche B Term Loans of the same Class. The terms and provisions of the Incremental Revolving Loans shall be identical to the Revolving Loans of the same Class. In the case of any Incremental Term Loans, (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Tranche B Terms Loans (provided that, in calculating the Weighted Average Life to Maturity, the effect of application of prepayments to future amortization payments shall be disregarded), (ii) the ~~Total Leverage Ratio~~applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the final maturity of the Tranche B Term Loans, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ (iii) the ~~representations~~ yield and ~~warranties set forth in Article III and in each~~ all other ~~Loan Document shall be true and correct in all material respects (or in all respects, if qualified as~~ terms applicable to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of ~~the Incremental Term Loans~~ each Series shall be determined by the Borrower Representative and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the Incremental Term ~~Lenders~~ Loans (after giving effect to all rate floors and ~~set forth in~~ all fees or original issue discount payable with respect to such Incremental Term Loans (and excluding for the avoidance of doubt, any underwriting or similar fees), as reasonably determined by the Administrative Agent, shall not be greater than the applicable ~~Incremental Assumption Agreement; provided that~~ yield (including the Applicable Margin and rate floor and any original issue discount or fees payable in connection with the initial issuance of such Tranche B Term Loans of the same currency (but excluding for the avoidance of doubt any underwriting or similar fees)) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to such Tranche B Term Loans, plus 0.50% per annum unless (i) the ~~final maturity date~~ interest rate with respect to such Tranche B Term Loans of ~~any~~ the same currency is increased so as to cause the then applicable interest rate under this Agreement on such Tranche B Term Loans to be not more than 0.50% less than the yield then applicable to the Incremental Term Loans ~~shall be no earlier than the Latest Maturity Date,~~ (after giving effect to all rate floors and all fees or original issue discount payable with respect to such Incremental Term Loans) and (ii) the ~~average life~~ interest rate with respect to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in ~~right of payment and with respect~~ any other currency, to ~~security and the borrower and guarantors of the Incremental~~ Tranche A Term Loans ~~shall be the same as the Borrower~~ and ~~Guarantors with respect~~ all Revolving Loans is increased by an amount equal to the ~~Term Loans, (iv) if~~ amount of any increase in the ~~All-in Yield on~~ interest rate for such ~~Incremental Term Loans exceeds the initial All-in Yield of the~~ Tranche B Term Loans ~~by more than 50 basis points (the amount of such excess above 50 basis points being referred~~ pursuant to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i~~) through (iv) above~~)~~, such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving ~~Credit Commitment (and the Incremental Revolving~~ Loans ~~thereunder) shall~~ will be ~~implemented~~ documented solely as an increase to the ~~Total~~ Revolving ~~Credit~~ Commitments ~~and shall be on terms identical~~ of the same Class without any change in terms, other than any change that is more favorable to the ~~existing~~ Revolving ~~Credit Commitments (~~Lenders and ~~the~~ applies equally to all Revolving Loans ~~thereunder). (d) In connection with any Incremental Commitments,~~ and Revolving Commitments of the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lendersame Class. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any Lender other than the applicable Incremental Revolving Loan Lender or Incremental Term Loan Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent ~~and the Borrower,~~ to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.26. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Grifols SA)

Incremental Facilities. Subject to the terms and conditions set forth herein, the Borrower shall have the right, from time to time and upon at least ten (a10) ~~The Borrower may, by~~ Business Days’ prior written notice to the Administrative Agent ~~from time~~ (an “Incremental Request”), to ~~time~~request to incur additional term loans under a then-existing tranche of Term Loans and/or add one or more additional tranches of term loans (“Other Term Loans” and, ~~request~~ together with any additional term loans under a then-existing tranche incurred pursuant to this Section 2.16, the “Incremental ~~Commitments~~ Term Loans”; and any credit facility providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase the Revolving Facility (the “Incremental Revolving Commitments”; and revolving loans made thereunder, the “Incremental Revolving Loans”); the Incremental Revolving Commitments, together with the Incremental Term Loans, are referred to herein as an “Incremental Facility”) subject, however, in ~~an amount~~ any such ~~that~~case, ~~after giving effect thereto,~~ to satisfaction of the following conditions precedent: (a) the aggregate amount of all Incremental Revolving Commitments ~~established at or prior~~ and Incremental Term Loans effected pursuant to ~~such time does~~ this Section 2.16 shall not exceed ~~$100,000,000. Such notice shall set forth~~ the Incremental Cap; (ib) subject to Section 1.09, on the date on which any Incremental Facility Amendment is to become effective, both immediately at the time of and immediately after giving effect to the incurrence of such Incremental Facility (assuming that the full amount of the Incremental ~~Commitments being requested (which~~ Facility shall ~~be in minimum increments of $500,000~~ have been funded on such date) and ~~a minimum amount of $5,000,000)~~any related transactions, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no ~~Default or Event of~~ Default shall have occurred and be ~~continuing immediately prior~~ continuing; (c) subject to ~~or immediately~~ Section 1.09, after giving effect to the incurrence of such Incremental ~~Commitments,~~ Facility (iiassuming the full amount of the Incremental Facility has been funded) and any related transactions or other transactions occurring on the ~~Total Leverage Ratio, determined~~ date thereof on a Pro Forma ~~Basis~~ Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Section 7.11; (~~assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans)~~d) subject to Section 1.09, ~~shall not exceed 2.75:1.00, (iii)~~ the representations and warranties set forth in Article ~~III and in each other Loan Document~~ V shall be true and correct in all material respects (or, if any such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects~~, if qualified as to materiality~~) on and as of the date on which such Incremental ~~Commitments~~ Facility Amendment is to become ~~effective~~ effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they shall be true and correct in all material respects (or or, if any such representation and warranty ~~relates~~ is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date; (e) such Incremental Facility shall be in a minimum amount of $25,000,000; (f) any Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to ~~another~~ the Revolving Facility, including with respect to maturity date, ~~such other date~~interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(b); (g) ~~and (iv) the terms of such Incremental Commitments and the~~ any Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~ that constitute additional term loans under a then-existing tranche of term loans (~~c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ which, for the avoidance of ~~the Incremental Term Loans~~ doubt, shall be determined by the Borrower and the Lenders providing such Incremental Term ~~Lenders~~ Loans) shall be made on the same terms and ~~set forth~~ provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans; 1204724.01-CHISR02A - MSW CHAR1\1886837v5 (h) in the ~~applicable Incremental Assumption Agreement; provided that~~ case of any Other Term Loan, such Other Term Loan shall (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu ~~with (~~or junior ~~to) the Tranche B Term Loans~~ in right of payment with the Facilities, not be Guaranteed by any Person that is not the Borrower or a Guarantor under the Facilities, and be unsecured or secured on a first lien pari passu basis with ~~respect to security~~ the Facilities or on a “junior” basis with the Facilities, in each case over the same (or less) Collateral that secures the Facilities (and ~~the borrower and guarantors of the Incremental~~ in each case, such Other Term ~~Loans~~ Loan shall be ~~the same as the Borrower and Guarantors with respect~~ subject to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans intercreditor arrangements that are ~~inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be~~ reasonably satisfactory to the Administrative Agent) but if unsecured or secured on a “junior” basis to the Facilities, such Other Term Loan shall be documented in a separate agreement than this Agreement, (ii) to the extent such Other Term Loan is pari passu in right of payment and security with the then-existing term loans, (x) may share on a greater than pro rata basis, pro rata basis or less than pro rata basis with voluntary prepayments or repayments in respect of any then-existing term loans and (y) may share on a pro rata basis or less than pro rata basis (but not greater than pro rata basis) with mandatory prepayments or repayments in respect of the then-existing term loans; (iii) have a maturity date that is not earlier than the later of (A) the Maturity Date and (B) the final maturity of any then-existing Other Term Loan, (iv) have a Weighted Average Life to Maturity that is not shorter than the then-remaining Weighted Average Life to Maturity of the Term Loans or any then-existing Other Term Loan (it being understood that, subject to the foregoing, the amortization schedule applicable to such Other Term Loan shall be determined by the Borrower and the Lenders of such Other Term Loan); (i) the Administrative Agent shall have received additional commitments in a corresponding amount of such requested Incremental Facility from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment); (j) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility and the validity of such Incremental Facility, all in form and substance reasonably satisfactory to the Administrative Agent; and (k) unless such Incremental Facility is to be documented in a separate agreement than this Agreement, the Administrative Agent shall have received such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations (in a manner consistent with the terms of the Loan Documents) after giving effect to such Incremental Facility. ~~Any~~ Unless such Incremental Facility is to be documented in a separate agreement than this Agreement, each Incremental Term Facility and any Incremental Revolving ~~Credit Commitment~~ Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (and ~~the Incremental Revolving Loans thereunder) shall be implemented as an increase~~ subject to the ~~Total Revolving Credit Commitments and shall be on terms identical to~~ limitations set forth in this Section 2.16), executed by the ~~existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower~~Loan Parties, the Administrative Agent and each ~~applicable~~ Lender providing a portion of the Incremental ~~Lender~~ Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall ~~execute and deliver~~ amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the ~~Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments~~Loan Documents, and such other ~~documentation~~ new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate in consultation with the Borrower to effect the modifications and credit extensions permitted by this Section 2.16. Notwithstanding anything to the contrary in this Agreement or any other Loan Document (including Section 11.01) hereof, neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall ~~reasonably specify~~ be required to ~~evidence~~ be executed or approved by any Lender, other than the Lenders providing such Incremental ~~Commitment~~ Term Facility and/or Incremental Revolving Commitments, as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction, on the date thereof, of each ~~Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery~~ of ~~opinions of counsel and other documentation consistent with~~ the conditions set forth ~~in Section 4.02, all~~ above 1204724.01-CHISR02A - MSW CHAR1\1886837v5 and of such other conditions as agreed to ~~the extent reasonably requested~~ by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement Borrower and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish Lenders under the Incremental Term ~~Loan~~ Facility or Incremental Revolving Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower established in connection ~~with the establishment of such new Class or tranche~~therewith. ARTICLE III TAXES, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.YIELD PROTECTION AND ILLEGALITY

Appears in 1 contract

Sources: Credit Agreement (SP Plus Corp)

Incremental Facilities. (a) ~~The~~ So long as no Event of Default exists or would arise therefrom (or, in the case of an incurrence of Incremental Loans in connection with a Limited Condition Acquisition, no Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into), the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Closing Date, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the ~~amount of~~ commitments thereunder, the “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000~~ Term Loan Commitments” and each a ~~minimum amount of $5,000,000~~“New Term Facility”), (ii) to increase the ~~date on which such Incremental Commitments are requested~~ existing Term Loans by requesting new term loan commitments to ~~become effective~~ be added to an existing Tranche of Term Loans (~~which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)~~“Supplemental Term Loan Commitments”), (iii) ~~whether such Incremental Commitments are~~ to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving ~~Credit Commitments or Incremental Term Loan Commitments~~ Commitments” and each a “New Revolving Facility”) and (iv) in to increase the ~~case~~ existing Revolving Credit Facility by requesting new revolving credit commitments to be added to an existing Tranche of ~~any request for~~ Revolving Credit Loans (the “Supplemental Revolving Commitments” and, together with the Incremental Term Loan Commitments, ~~whether such Incremental~~ Supplemental Term Loan Commitments ~~are commitments~~ and the Incremental Revolving Commitments, the “Incremental Commitments”) by an amount not to ~~make additional Term Loans~~ exceed the Incremental Amount (at the time of incurrence or establishment of such Incremental Commitment). Any loans made in respect of any ~~then outstanding Class or commitments to make~~ such Incremental Commitment (other than Supplemental Term ~~Loans of~~ Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new ~~Class~~Tranche. ~~The Borrower may seek~~ Each Incremental ~~Commitments from existing Lenders (each of which~~ Commitment made available pursuant to this Section 2.14 shall be ~~entitled to agree~~ in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or ~~decline to participate in its sole discretion) or any Additional Lender~~such lesser amounts as the Administrative Agent may agree). (b) It Each request from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (other than any Disqualified Lender) (any such bank or other financial institution, an “Additional Lender”); provided that, if such Additional Lender is not already a ~~condition precedent~~ Lender hereunder or an Affiliate of a Lender hereunder, to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as consent of the ~~date~~ Administrative Agent (such ~~Incremental Commitments become effective (~~consent not to be unreasonably withheld or ~~if such representation and warranty relates to another date, such other date~~delayed) and (ivin the case of an Incremental Revolving Commitment only) the ~~terms~~ consent of any Swing Line Lender or the L/C Issuer (such consent not to be unreasonably withheld or delayed), as the case may be, that may be required pursuant to Section 10.07 (it being understood that any such Additional Lender that is an Affiliate Lender shall be subject to the provisions of Section 10.07(i), mutatis mutandis, to the same extent as if such Incremental Commitments and ~~the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~related Obligations had been obtained by such Lender by way of assignment). (c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Tranche of Revolving Loans, as applicable, to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit M-1 (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit M-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register pursuant to which such Lender or Additional Lender agrees to commit to all or a portion of such Incremental Commitment, and in the case of an Additional Lender, to be bound by the terms of this Agreement as a Lender. The Borrower may agree to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on whatever basis the Borrower determines is appropriate. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan and the Supplemental Revolving Commitment shall be an Initial Revolving Credit Commitment, an Incremental Revolving Commitment or Extended Revolving Commitments of a particular Extension Series, as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall ~~be established~~ become commitments under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Commitment Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the ~~Borrower~~ Borrower, each Additional Lender and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the An Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other Lender, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower~~Administrative Agent, to effect the provisions of this Section ~~2.25~~2.14 (including, ~~including~~ without limitation, with respect to any ~~amendments necessary~~ Incremental Commitments to ~~establish~~ be secured on a junior basis by the Collateral, appropriate modifications, if any, to Sections 2.05(b)(vi), 8.02 and 8.04 of this Agreement and to the Guaranty, the Security Agreement and the Pledge Agreement), provided, however, that (i) (A) the Incremental ~~Term Loan~~ Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Loans and (C) no Incremental Commitment Amendment may provide for any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) (a) in the case of a New Term Facility, the maturity date and the Weighted Average Life to Maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the Weighted Average Life to Maturity of the Initial Term Loans, as applicable, and (b) in the case of Incremental Revolving Commitments, the termination date of such Incremental Commitments shall be no earlier than the Maturity Date for the Initial Revolving Credit Commitments and such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Initial Revolving Credit Facility; (iv) the interest rate margins, (subject to Section 2.14(d)(iii)(a)) amortization schedule, original issue discount (“OID”), upfront fees and interest rate floors applicable to the loans made pursuant to the New Term Facilities or New Revolving Facilities shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any Incremental Term Loans ~~as a new Class or tranche~~ incurred by the Borrower under any New Term Facilities prior to the eighteen-month anniversary of the Closing Date are higher than the applicable interest rate margin for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such New Term Facilities minus 50 basis points; provided, further, that in determining the applicable interest rate margins for the Initial Term Loans and ~~such other technical amendments as may~~ the New Term Facilities, (A) OID or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be ~~necessary~~ deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or ~~appropriate~~ any New Term Facilities in the ~~reasonable opinion~~ initial primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the New Term Facilities that are not shared with all Additional Lenders providing such New Term Facilities shall be excluded; (C) any amendments to the Applicable Rate on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of such New Term Facilities shall also be included in such calculations and (D) if the New Term Facilities include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Rate for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Initial Term Loans set forth in the last sentence of the definition of Eurodollar Rate and Base Rate, respectively, shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder and (2) class voting and other class protections for any additional credit facilities; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that, to the extent such terms and documentation are not consistent with, the terms and documentation governing the existing Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Administrative Agent and the ~~Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~Borrower. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (Tribune Media Co)

Incremental Facilities. (a) ~~The Borrower may, by written notice~~ At the option of Borrowers (but subject to the ~~Administrative~~ conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Revolver Increase Amount (each such increase, an “Increase”). Agent ~~from time~~ shall invite each Lender to ~~time~~increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, ~~request Incremental~~ and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than three occasions in the aggregate for all such ~~that~~Increases. Additionally, ~~after giving effect thereto~~for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of ~~Incremental~~ the Increases to the Revolver Commitments ~~established at or prior to such time does not~~ exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender50,000,000. (b) It Each of the following shall be ~~a condition~~ conditions precedent to any Increase of the ~~effectiveness of any Incremental Commitment that~~ Revolver Commitments and the Maximum Revolver Amount in connection therewith: (i) ~~no Default~~ Agent or ~~Event~~ Borrowers have obtained the commitment of ~~Default~~ one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, (ii) each of the conditions precedent set forth in Section 3.2 are satisfied, (iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board, (iv) Borrowers have ~~occurred and be continuing immediately prior~~ delivered to ~~or immediately~~ Agent updated pro forma Projections (after giving effect to ~~such Incremental Commitments, (ii~~the applicable Increase) for the ~~Total Leverage Ratio, determined~~ Loan Parties and their Subsidiaries evidencing compliance on a ~~Pro Forma Basis~~ pro forma basis with Section 7 for the twelve months (~~assuming that all Incremental Commitments have been fully funded and without netting~~ on a month-by-month basis) immediately following the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as proposed date of the ~~date such Incremental Commitments become effective (or if such representation and warranty relates to another date~~applicable Increase, ~~such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~and (cv) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement.~~ The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and interest rate margins with respect to ~~security and~~ the ~~borrower and guarantors of~~ Revolving Loans to be made pursuant to the ~~Incremental Term Loans~~ increased Revolver Commitments shall be the same as the ~~Borrower and Guarantors with respect~~ interest rate margin applicable to Revolving Loans hereunder immediately prior to the ~~Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield~~ date of the ~~Tranche B Term Loans by more than 50 basis points~~ effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the “Increase Date”) and shall have communicated the amount of such ~~excess above 50 basis points being referred~~ interest margins to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any ~~Incremental Revolving Credit Commitment (~~Increase Joinder may, with the consent of Agent, Borrowers and the ~~Incremental Revolving Loans thereunder) shall be implemented as an increase~~ Lenders or prospective lenders agreeing to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lenderproposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary ~~or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,~~ to ~~effect~~ effectuate the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.14. (ec) ~~Upon each increase~~ Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving ~~Credit~~ Loans made pursuant to the increased Revolver Commitments and Maximum Revolver Amount pursuant to this Section ~~‎2.25, each Revolving Credit Lender with~~ 2.14. (d) Each of the Lenders having a ~~Revolving Credit~~ Revolver Commitment ~~immediately~~ prior to ~~such increase will automatically and without further act be deemed~~ the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to ~~have assigned to each Incremental Revolving Credit~~ any Lender ~~in respect of such increase~~which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such ~~Incremental~~ interests in the Revolving ~~Credit Lender will automatically~~ Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder~~ participation interests in ~~outstanding~~ Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding participations hereunder~~ such Revolving Loans and participation interests in Letters of Credit will be held by ~~each~~ Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments. (e) The Revolving ~~Credit Lender (including each such Incremental~~ Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving ~~Credit Lender) will equal its Revolving Credit Percentage~~Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. ~~If, on the date of such increase, there are~~ Borrowers shall take any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so actions reasonably required by Agent to ensure and demonstrate that the ~~Revolving Loans are thereafter held~~ Liens and security interests granted by the ~~Revolving Credit Lenders according~~ Loan Documents continue to ~~their Revolving Credit Percentages (~~be perfected under the Code or otherwise after giving effect to the ~~increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid~~ establishment of any such new Revolver Commitments and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceMaximum Revolver Amount.

Appears in 1 contract

Sources: Credit Agreement (INFINERA Corp)

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions after the Closing Date, by written notice to the Administrative ~~Agent from time~~ 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 ~~time~~such commitments, ~~request~~ “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 ~~in an amount~~ at any time shall not exceed the Permitted Incremental Amount applicable to the Incremental Commitments at such ~~that, after giving effect thereto,~~ time less the aggregate amount of Incremental ~~Commitments established at or prior~~ Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”. Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ 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 (~~which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate 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 ~~any Additional Lender~~an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent). (b) It 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 ~~condition precedent~~ 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 Eurodollar or Alternate Base Rate floor that is greater than the Eurodollar 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 Eurodollar 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 Eurodollar 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 ~~Commitment~~ 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; provided that, notwithstanding anything to the contrary in this Section 2.21 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 or and immediately after giving effect to such Incremental ~~Commitments~~Commitments and the making of Incremental Loans thereunder to be made on such date, (ii) except as otherwise agreed by the ~~Total Leverage Ratio, determined on a Pro Forma Basis~~ Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (~~assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans~~which shall be governed by clause (d) below), ~~shall not exceed 2.75:1.00~~on the date of effectiveness thereof, ~~(iii)~~ the representations and warranties set forth in Article III and in ~~each~~ the other Loan ~~Document~~ 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, (or 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 ~~all respects, if qualified as~~ compliance with the Financial Covenants set forth in Section 6.12 with respect to ~~materiality) on and~~ the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments ~~become effective (or if such representation and warranty relates to another date, such other date)~~ on a pro forma basis and (iv) the ~~terms~~ 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 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) 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 ~~Term~~ Loans ~~or Incremental Revolving Loans~~ and other extensions of credit thereunder ~~shall comply with Section 2.25(c). (c) Incremental Commitments~~ to be made on the date of effectiveness thereof, the Borrower shall be ~~established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of~~ in compliance with the ~~Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and~~ Financial Covenants set forth in Section 6.12 with respect to the ~~applicable Incremental Assumption Agreement; provided that (i)~~ Fiscal Quarter of the ~~final maturity~~ Borrower most recently ended as of the date of ~~any~~ effectiveness of such Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, Commitments on a pro forma basis and (iii) the ~~Incremental Term Loans will rank pari passu with (~~Borrower shall have delivered or ~~junior to) the Tranche B Term Loans in right of payment and with respect~~ caused to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have been delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing for~~ such ~~Incremental Commitments~~customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and ~~such~~ other ~~documentation~~ documents as ~~the Administrative Agent~~ shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably be requested by the Administrative Agent ~~or the other parties to~~ in connection with any such transaction. (e) Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this ~~Section 2.25~~Section, ~~including~~ including, without limitation, any amendments ~~necessary~~ and/or supplements to ~~establish~~ the ~~Incremental Term Loan Commitments~~ documents delivered to satisfy the Collateral and ~~Incremental Term Loans as a new Class or tranche of Term Loans~~ Guarantee Requirement (including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies) and such ~~other~~ technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new 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 another 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 ~~tranche~~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) and of the effectiveness of any Incremental Commitments, in each case ~~on terms consistent with this Section 2.25~~advising the Lenders of the details thereof. (ei) ~~Upon each increase in the Revolving Credit Commitments pursuant to this~~ This Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans 2.21 shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.supersed

Appears in 1 contract

Sources: Credit Agreement (TransMontaigne Partners LLC)

Incremental Facilities. After the Second Restatement Date, the Borrower may from time to time add one or more new term loan commitment tranches (each an “Incremental Term Commitment”, and any such increase, an “Incremental Term Facility”), and/or subsequently increase the then-existing Revolving Credit Commitments (each an “Incremental Revolving Credit Commitment” (and together with each Incremental Term Commitment, the “Incremental Commitments”), and any such increase, an “Incremental Revolving Credit Facility” (and together with each Incremental Term Facility, collectively, the “Incremental Facilities”)), to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, 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: (a) ~~The~~ no more than four Incremental Facilities may be implemented by the Borrower ~~may, by written notice to~~ during the ~~Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto,~~ term of this Agreement and the aggregate principal amount of each Incremental ~~Commitments established at or prior to such time does~~ Facility shall not exceed ~~$100,000,000. Such notice shall set forth (i) the amount of~~ the Incremental ~~Commitments being requested~~ Available Amount (~~which shall be in minimum increments~~ determined at the time of ~~$500,000 and a minimum amount~~ incurrence of ~~$5,000,000~~each Incremental Facility), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.; (b) It no Default shall exist on the effective date of such Incremental Facility or would exist after giving effect to such Incremental Facility (except, in the connection with a Limited Condition Acquisition, in which case this requirement shall be ~~a condition precedent to~~ that, as of the ~~effectiveness~~ effective date of ~~any~~ such Incremental ~~Commitment that (i)~~ Facility, no ~~Default or~~ Specified Event of Default shall have occurred and be continuing ~~immediately prior to~~ or ~~immediately after giving effect to~~ would result from such Incremental ~~Commitments~~Facility); (c) each Incremental Facility shall be in an aggregate principal amount of at least $20,000,000 and integral multiples of $1,000,000 in excess thereof; (d) subject to Section 1.07 with respect to any Limited Condition Acquisition, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties ~~set forth~~ of each Loan Party contained in Article ~~III and in each~~ V or any other Loan ~~Document~~ Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the effective date of such Incremental Facility (or in the case of any such representations and warranties that contain a materiality or Material Adverse Effect qualification, be true and correct in all ~~respects~~respects on and as of the effective date of such Incremental Facility), ~~if qualified~~ 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 earlier date (or in the case of any such representations and warranties that contain a materiality or Material Adverse Effect qualification, be true and correct in all respects as of such earlier date); (e) no existing Lender shall be under any obligation to ~~materiality~~provide any portion of an Incremental Facility and any such decision whether to provide a commitment to an Incremental Facility shall be in such L▇▇▇▇▇’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, certifying that, before and after giving effect to such Incremental Facility, (1) subject to Section 1.07 with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such increase (or in the case of any such representations and warranties that contain a materiality or Material Adverse Effect qualification, shall be true and correct in all respects on and as of the date of sch 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 earlier date (or in the case of any such representations and warranties that contain a materiality or Material Adverse Effect qualification, shall be true and correct in all respects on and as of such earlier date), and (2) subject to Section 1.07 (and pursuant to clause (b) above) with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, no Default or Specified Event of Default, as applicable, exists; (ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental ~~Commitments become~~ Facility (collectively “Collateral Document Amendments”); (iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a portion of an Incremental Facility), dated as of the effective ~~(or if~~ date of such ~~representation and warranty relates to another date, such other date) and~~ Incremental Facility; and (iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to the ~~terms~~ incurrence of such Incremental ~~Commitments~~ Facility on a Pro Forma Basis (and for purposes of the calculation under this clause (iv) assuming any Incremental Revolving Credit Facility is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 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 (b), but subject to Section 1.07 with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition; (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 ~~Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~Facility; provided that: (cA) the final maturity of such Incremental ~~Commitments~~ Term Facility shall not be ~~established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ earlier than the later of the ~~Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and~~ latest maturity date set forth in the ~~applicable Incremental Assumption Agreement; provided that (i)~~ definition of “Maturity Date” and the ~~final~~ latest maturity date of any previously incurred Term Loan under this Agreement; (B) the Weighted Average Life to Maturity of such Incremental Term ~~Loans~~ Facility shall not be ~~no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no~~ shorter than the ~~remaining average life~~ Weighted Average Life to ~~maturity~~ Maturity of any ~~then-outstanding Class of~~ previously incurred Term ~~Loans,~~ Loan; and (~~iii~~C) in the event that the Effective Yield for any Incremental Term ~~Loans will rank pari passu with (or junior to)~~ Loan is greater than the ~~Tranche B~~ then lowest Effective Yield for any of the 2023 Term Loans ~~in right of payment and with respect to security and~~ and/or the ~~borrower and guarantors of the Incremental~~ 2021 Replacement Term Loans ~~shall be the same as the Borrower and Guarantors with respect to the Term Loans~~then outstanding (any such difference, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the a “Yield Differential”)) by more than 0.50%, then the Applicable ~~Margin for~~ Rate (and/or, as provided in the ~~Tranche B~~ proviso below, the Term SOFR or Base Rate “floor”) applicable to the 2023 Term Loans ~~shall automatically~~ and/or the 2021 Replacement Term Loans (as applicable) shall, in each case, each be increased by to the extent necessary so that the Yield ~~Differential~~Differential for each of the 2023 Term Loans the 2021 Replacement Term Loans is 0.50%; provided, ~~effective upon~~ that, to the ~~making~~ extent any portion of the Yield Differential is attributable to a higher Term SOFR “floor” being applicable to such Incremental Term Loans and ~~(v)~~ such “floor” is greater than the Term SOFR in effect for an Interest Period of three months’ duration at such time, the Term SOFR “floor” applicable to the ~~extent~~ outstanding Term Loans shall be increased to an amount not to exceed the ~~terms~~ Term SOFR “floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding; (ii) such Incremental Term Facility shall share ratably in any mandatory prepayments of the 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); and (i) in the case of the Incremental ~~Term Loans are inconsistent with~~ Revolving Credit Facility, the ~~terms set forth herein (except as set forth in clause (i) through (iv) above)~~interest rate, ~~such terms shall be reasonably satisfactory to~~ interest rate margins, fees, discount, prepayment premiums, and final maturity date for the ~~Administrative Agent. Any~~ Incremental Revolving Credit ~~Commitment (~~Facility shall be as agreed by the Loan Parties and the Lenders providing the Incremental Revolving ~~Loans thereunder)~~ Credit Facility; provided, there shall be ~~implemented as an increase~~ no scheduled commitment reductions applicable to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit ~~Lender will automatically~~ Facility and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness final maturity of such Incremental Revolving Credit ~~Commitment be prepaid from~~ Facility shall not be, in each case, earlier than the ~~proceeds~~ later of ~~additional Revolving Loans made hereunder so that~~ the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent Maturity Date and the ~~Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in~~ latest maturity date of any previously incurred term loan under this ~~Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence~~Agreement.

Appears in 1 contract

Sources: Credit Agreement (Rite Aid Corp)

Incremental Facilities. (a) ~~The~~ So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Closing Date, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the ~~amount of the~~ “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Term Loan Commitments”), (ii) to increase the ~~date on which such Incremental Commitments are requested~~ loans in any Tranche by requesting new term loan commitments to ~~become effective~~ be added to an existing Tranche of Loans (~~which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)~~“Supplemental Term Loan Commitments”), (iii) ~~whether such Incremental Commitments are~~ to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving ~~Credit Commitments or Incremental Term Loan Commitments~~ Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (together with the ~~case of any request for~~ Incremental Term Loan Commitments, ~~whether such Incremental~~ Supplemental Term Loan Commitments ~~are commitments~~ and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to ~~make additional Term Loans~~ this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of any ~~then outstanding Class or commitments to make~~ such Incremental Commitment (other than Supplemental Term ~~Loans of~~ Loan Commitments) shall be made by creating a new ~~Class~~Tranche. ~~The Borrower may seek~~ Each Incremental ~~Commitments from existing Lenders (each of which~~ Commitment made available pursuant to this subsection 2.5 shall be ~~entitled to agree or decline to participate~~ in ~~its sole discretion) or any Additional Lender~~a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) It Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be ~~a condition precedent~~ subject to the ~~effectiveness~~ provisions of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loanssubsection 10.6(h), ~~shall not exceed 2.75:1.00~~mutatis mutandis, ~~(iii)~~ to the ~~representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects,~~ same extent as if ~~qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of~~ such Incremental Commitments and ~~the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~related Obligations had been obtained by such Lender by way of assignment). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall ~~be established~~ become commitments under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Commitment Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agenteach Additional Lender. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the An Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other Lender, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower~~Administrative Agent, to effect the provisions of this ~~Section 2.25~~subsection 2.5, ~~including~~ provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any ~~amendments~~ Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans and (II) so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the Term Loans),; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the weighted average life to maturity of the Term Loans, as applicable (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Maturity Date of the Term Loans or the weighted average life to maturity of the Term Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the applicable Additional Lenders; provided that, in the event that the applicable interest rate margins for any term loans Incurred by the Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for the Term Loans by more than 50 basis points, then the Applicable Margin for the Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Term Loans is equal to ~~establish~~ the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Term Loans and the Incremental Term ~~Loan Commitments and~~ Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under Term Loans or any Incremental Term ~~Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate~~ Loan in the ~~reasonable opinion of the Administrative Agent and the Borrower~~ initial primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the ~~establishment~~ Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Term Loans that became effective subsequent to the Closing Date but prior to the time of such ~~new Class~~ Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Term Loans shall be required, to the extent an increase in the interest rate floor for the Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or ~~tranche~~action of the Required Lenders, Supermajority Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of the Term Loans and weighted average life to maturity of the Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, and (4) in the case of an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms ~~consistent with this Section 2.25. (e) Upon each increase in~~ agreed by the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participationsBorrower, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders ~~hereby agree that~~ providing such Commitments (including any swingline lender or issuing lender); and (vi) the ~~minimum borrowing~~other terms and documentation in respect thereof, ~~pro rata borrowing and pro rata payment requirements contained elsewhere in~~ to the extent not consistent with this Agreement ~~shall not apply~~ as in effect prior to giving effect to the ~~transactions effected pursuant~~ Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the ~~immediately preceding sentence~~Borrower.

Appears in 1 contract

Sources: Credit Agreement (Hd Supply, Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Event of Default (except in connection with an acquisition or investment, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. (b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from ~~time to time~~each of the Lenders with Revolving Credit Commitments of such Class, ~~request Incremental Commitments~~ at the principal amount thereof, such interests in ~~an amount~~ the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect ~~thereto~~to all such assignments and purchases, the ~~aggregate amount~~ Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental ~~Commitments established at~~ Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or ~~prior~~ delayed) to such ~~time does not exceed $100,000,000. Such notice~~ Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the ~~amount~~ applicable New Term Loan Maturity Date of ~~the Incremental Commitments being requested (which~~ each Series shall be ~~in minimum increments of $500,000 and a minimum amount of $5,000,000),~~ no earlier than the Initial Term Loan Maturity Date; (ii) the ~~date on which such Incremental Commitments are requested~~ weighted average life to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ maturity of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional all New Term Loans ~~of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which~~ shall be ~~entitled~~ no shorter than the weighted average life to ~~agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to~~ maturity of the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental then existing Initial Term Loans~~), shall not exceed 2.75:1.00~~, (iii) the ~~representations~~ pricing, interest rate margins, discounts, premiums, rate floors, fees, and ~~warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as~~ amortization schedule applicable to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental any New Term Loans shall be determined by the Borrower and the ~~Incremental Term~~ Lenders ~~and set forth in~~ thereunder; provided, if the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Effective Yield for LIBOR Loans in ~~right~~ respect of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such ~~Incremental~~ New Term Loans exceeds the ~~initial All-~~Effective Yield for LIBOR Loans in ~~Yield~~ respect of the ~~Tranche B~~ then existing Initial Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.50%, ~~then~~ the Applicable Margin for LIBOR Loans in respect of the ~~Tranche B~~ then existing Initial Term Loans shall ~~automatically~~ be ~~increased by~~ adjusted so that the Effective Yield ~~Differential, effective upon~~ in respect of the ~~making of such Incremental~~ then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans in respect of the New Term Loans minus 0.50%; and (viv) to the extent such terms and documentation are not consistent with the ~~terms of the Incremental~~ then existing Initial Term Loans ~~are inconsistent with the terms set forth herein~~ (except ~~as set forth in~~ to the extent permitted by clause (i), (ii) ~~through~~ or (iviii) above), ~~such terms~~ they shall be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment~~ Agent (~~and~~ it being understood that, (1) to the ~~Incremental Revolving Loans thereunder)~~ extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be ~~implemented as an increase to~~ required by the ~~Total~~ Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be ~~on terms~~ identical to the ~~existing~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans ~~thereunder~~with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Sections 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrower and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (df) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section ~~2.25, including~~ 2.14. (i) The Borrower may at any ~~amendments necessary~~ time and from time to ~~establish~~ time request that all or a portion of the ~~Incremental~~ Term Loans of any Class (an “Existing Term Loan ~~Commitments and Incremental~~ Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans ~~as a new Class or tranche of~~ (any such Term Loans which have been so converted, “Extended Term Loans”) and ~~such~~ to provide for other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section ~~2.25~~2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or AHYDO payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted. (eii) ~~Upon each increase in~~ The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments ~~pursuant to this Section ‎2.25~~of any Class, ~~each~~ any Extended Revolving Credit ~~Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each~~ Commitments and/or any Incremental Revolving Credit ~~Lender in respect~~ Commitments, each existing at the time of such ~~increase~~request (each, ~~and each such Incremental~~ an “Existing Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid Commitment” and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.related rev

Appears in 1 contract

Sources: Credit Agreement (GoDaddy Inc.)

Incremental Facilities. ~~(a)~~ The Parent Borrower ~~may,~~ may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (including on a delayed draw basis) (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 (or the Dollar Equivalent thereof) individually (or such lesser amount as (x) may be approved by the Administrative Agent ~~from time to time, request~~ or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments ~~in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at~~ obtained on or prior to such ~~time does not exceed $100,000,000~~date). ~~Such~~ Each such notice shall ~~set forth~~ specify the date on which the Parent Borrower proposes that the New Loan Commitments shall be effective (ithe effective date, the “Increased Amount Date”), the Borrowers (including by appointing a Guarantor (other than Holdings) ~~the amount of the Incremental Commitments being requested~~ as a “Borrower”, subject to customary “know your customer” and equivalent procedures and compliance with Section 1.13 (which shall be ~~in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested~~ deemed to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental apply to New Term Loan Commitments, ~~whether~~ mutatis mutandis)) to which such ~~Incremental Term~~ New Loan Commitments ~~are commitments~~ will be available and the currency in which such New Loan Commitments will be borrowed. Subject to ~~make additional Term Loans~~ Section 1.11(c), in connection with the incurrence of any ~~then outstanding Class or commitments~~ Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Parent Borrower shall provide to ~~make Term Loans of~~ the Administrative Agent a ~~new Class~~certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor. The ~~Borrower~~ Borrowers may ~~seek Incremental~~ approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments ~~from existing Lenders (each of which shall be entitled to agree~~ may elect or ~~decline to participate~~ decline, in its sole discretion~~) or any Additional Lender. (b) It~~ , to provide a New Loan Commitment. In each case, such New Loan Commitments shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and become effective as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable ~~Incremental Assumption Agreement~~Increased Amount Date; provided that (i) (A) subject to Section 1.11(c), no Event of Default under Section 11.1 or Section 11.5 (solely with respect to a Borrower) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable and (B) after giving effect to such New Loan Commitments, the ~~final maturity~~ condition in Section 7.1(b) shall be satisfied (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7.1 shall be deemed to refer to the applicable date determined in accordance with Section 1.11(c)); provided, further, that the lenders providing such New Loan Commitments may modify and/or waive the requirement regarding the condition in Section 7.1(b) for all purposes hereunder, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Parent Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), (iii) the New Loan Commitments (x) shall not be incurred or guaranteed by any ~~Incremental~~ Subsidiary other than any Credit Party and (y) if secured, shall not be secured by any assets other than the Collateral and (iv) the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of the Parent Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, 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, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(a) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. On or after the 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 Borrowers, as specified in the applicable Notice of Borrowing, (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount up 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. The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Parent Borrower; provided that (i) subject to the Inside Maturity Exceptions, the applicable New Term Loan Maturity Date of each Series shall be no earlier than the ~~Latest~~ Initial Term Loan Maturity ~~Date,~~ Date (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto); (ii) subject to the Inside Maturity Exceptions, the weighted average life to maturity of ~~the Incremental~~ all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Initial Term Loans (or the then existing Amendment No. 3 Term Loans (excluding the effects of any ~~then-outstanding Class~~ amortization of such New Term Loans in an amount no greater than 1.00% per annum and calculated without giving effect to prepayments of the Term Loans) (as in effect at the time of such incurrence or obtaining of a commitment with respect thereto), (iii) the ~~Incremental~~ mandatory prepayments of the New Term Loans ~~will rank~~ shall be made on a pro rata basis (or less than pro rata basis) with all other Initial Term Loans and Amendment No. 3 Term Loans in the case of mandatory prepayments applicable to the Initial Term Loans, or the Amendment No. 3 Term Loans, as applicable, (iv) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower(s) and the Lenders thereunder; provided that in the case of broadly syndicated term loan “B” Dollar-denominated New Term Loans that are pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and security with ~~respect to security and~~ the ~~borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the~~ then existing Initial Term Loans, ~~(iv)~~ if the ~~All-~~Effective Yield for Term SOFR Loans in ~~Yield on~~ respect of such ~~Incremental~~ New Term Loans exceeds the ~~initial All-~~Effective Yield for Term SOFR Loans in ~~Yield~~ respect of the ~~Tranche B~~ then existing Initial Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.75%, ~~then~~ the Applicable Margin for Term SOFR Loans in respect of the ~~Tranche B~~ then existing Initial Term Loans shall ~~automatically~~ be ~~increased~~ adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for Term SOFR Loans in respect of the New Term Loans minus 0.75% (this proviso, the “MFN Provision”) (provided, that to the extent such increase in Effective Yield is the result of a higher floor with respect to such New Term Loans, the increase in Effective Yield for the existing Initial Term Loans shall take the form of an increase in the Floor for such Initial Term Loans to the extent of the Effective Yield differential); provided, further, that the MFN Provision shall not apply to (1) New Term Loans incurred on or after the date that is 6 months after the Closing Date, (2) New Term Loans scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date, (3) any New Term Loans originally incurred in reliance upon the Shared Incremental Amount or the Prepayment and Extension Amount, (4) any New Term Loans incurred in connection with a Permitted Acquisition or other permitted Investment or to refinance Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (5) any New Term Loans having an aggregate principal amount not exceeding the greater of $191,000,000 and 100% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as selected by the ~~Yield Differential, effective upon the making of such Incremental~~ Parent Borrower and (6) any New Term Loans that constitutes a bridge facility (clauses (1), (2), (3), (4), (5) and (6), collectively, the “MFN Exceptions”); and (v) to the extent such terms and documentation are materially more favorable to the New Term Loan Lenders than the terms of the ~~Incremental~~ existing Initial Term Loans ~~are inconsistent with~~ or the ~~terms set forth herein~~ existing Amendment No. 3 Term Loans (except ~~as set forth in~~ to the extent permitted (or, for the avoidance of doubt, not prohibited) by clause (i), (ii), (iii) ~~through~~ or (iv) above), ~~such terms~~ they shall be either (A) reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment~~ Agent (~~and the Incremental Revolving Loans thereunder)~~ provided that no consent shall be ~~implemented~~ required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Initial Term Loan Maturity Date or if such covenants or other provisions are added for the benefit of the Initial Term Loans or the Amendment No. 3 Term Loans, as ~~an increase~~ applicable), (B) then-current market terms (as determined by the Borrower in good faith at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto)) for the applicable type of Indebtedness or (C) applicable only to periods after the ~~Total~~ Initial Term Loan Maturity Date. Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be ~~on terms~~ identical to the ~~existing~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such ~~other documentation as the Administrative Agent shall reasonably specify~~ Increased Amount Date, subject to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section ~~4.02, all~~ 3.12 to the extent ~~reasonably requested by the Administrative Agent~~ dealing with Letters of Credit which mature or ~~the other parties to such~~ expire after a maturity date when there exists Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments ~~pursuant to this Section ‎2.25~~with a longer maturity date, ~~each~~ all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit ~~Lender~~ Commitments of the same Series in accordance with a their percentage of such Revolving Credit ~~Commitment immediately prior~~ Commitments on the applicable Increased Amount Date (and except as provided in Section 3.12, without giving effect to ~~such increase will automatically and without further act be deemed~~ changes thereto on an earlier maturity date with respect to ~~have assigned to each Incremental Revolving~~ Letters of Credit ~~Lender~~ theretofore incurred or issued in respect of such ~~increase~~Series), the permanent repayment of Revolving Credit Loans with respect to, and ~~each such~~ termination of, Incremental Revolving Credit ~~Lender will automatically and without further act~~ Commitments after the associated Increased Amount Date shall be ~~deemed to have assumed,~~ made on a ~~portion of such existing~~ pro rata basis with all other Revolving Credit ~~Lender’s~~ Commitments on such Increased Amount Date, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, assignments and participations ~~hereunder in outstanding Letters~~ of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit ~~Lender) will equal its~~ Commitments and Incremental Revolving Credit ~~Percentage. If,~~ Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and the pricing, fees, maturity and other terms and provisions (other than with respect to matters contemplated by clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) of this Section 2.14(e), which shall be as set forth above) of the Additional Revolving Credit Loans may be different and shall be either (A) determined by the Parent Borrower and the Lenders thereunder so long as the final maturity date and the weighted average maturity of ~~such increase~~any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, ~~there are any~~ as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans ~~outstanding~~or (B) consistent with market terms and conditions, ~~such Revolving Loans shall upon~~ taken as a whole, at the time of incurrence or effectiveness of such ~~Incremental~~ Additional Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16Loans. 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[Reserved].

Appears in 1 contract

Sources: Credit Agreement (Mirion Technologies, Inc.)

Incremental Facilities. (a) The Borrower may, by written notice to the ~~Administrative~~ Agent from time to time, request Incremental Term Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for ~~Incremental Term Loan Commitments, whether~~ all such Incremental Term ~~Loan~~ Commitments ~~are commitments~~ not to ~~make additional~~ exceed the Incremental Facility Amount at such time from one or more Incremental Term ~~Loans of~~ Lenders, which may include any ~~then outstanding Class~~ existing Lender or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders~~ any Eligible Assignee (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that (i) each Incremental Term Lender shall be subject to the approval of the Agent (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (x) the amount of the Incremental Term Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or such lesser amount equal to the remaining Incremental Facility Amount, as applicable), (y) the date on which such Incremental Term Commitments are requested to become effective and (z) whether such Incremental Term Commitments are (i) commitments to make additional B Term Loans (which commitments shall only be permitted if such additional B Term Loans are fungible for United States Federal income tax purposes with the existing B Term Loans) or ~~any Additional Lender~~(ii) commitments to make new B Type Term Loans (as defined below) with terms different from the B Term Loans (such loans, “Specified Incremental Term Loans” and such commitments “Specified Incremental Term Commitments”). (b) It The Borrower and each applicable Incremental Term Lender shall ~~be a condition precedent~~ execute and deliver to the ~~effectiveness~~ Agent an Incremental Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Commitment of each Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall~~ to be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreementmade thereunder; provided that (i1)(A)(i) the final maturity date of any Specified Incremental Term Loans shall be no earlier than the ~~Latest~~ B Term Loan Maturity ~~Date,~~ Date and (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~the~~ any Specified Incremental Term Loans shall be no shorter than the ~~remaining average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~any then-outstanding Class of~~ the B Term Loans, ; and (~~iii~~B) if the initial yield on any such Specified Incremental Term Loans ~~will rank pari passu with~~ that is incurred on or prior to the date that is 12 months after the Closing Date (~~or junior to~~as such yield is determined by the Agent by adding (x) the ~~Tranche B Term Loans in right of payment and with respect to security and~~ margin above the ~~borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield~~ Eurocurrency Rate on such ~~Incremental Term~~ Loans ~~exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points~~ (~~the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans~~ which shall ~~automatically~~ be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with amount that any ~~Incremental Commitments, the Borrower, the Administrative Agent and each~~ interest rate “floor” applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are ~~thereafter held by~~ made would exceed the ~~Revolving Credit Lenders according to their Revolving Credit Percentages~~ Eurocurrency Rate for a three-month Interest Period commencing on such date) and (~~after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving~~ y) if such Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.are [[3596554]]

Appears in 1 contract

Sources: Credit Agreement (Leidos Holdings, Inc.)

Incremental Facilities. (a) ~~The~~ At any time or from time to time on or after the SecondThird Amendment Effective Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time,~~ request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) prior to the ~~amount~~ Maturity Date of the ~~Incremental Commitments being requested~~ applicable Revolving Credit Facility, one additional revolving credit facility tranche (~~which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii~~“New Revolving Credit Commitments”) or one or more increases to the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental existingTranche A Revolving Credit Commitments or the NewTranche B Revolving Credit Commitments (any such increase in commitments, the “Increased Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”) and/or (ii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new term loan commitments (the “New Term Commitments” and, together with the New Revolving Credit Commitments and the IncreasedIncremental Revolving Credit Commitments, the “Incremental Commitments”) which may be of the same Class as existing Term Loans or a separate Class of new term loans; provided that, (ivx) the aggregate principal amount of all such Incremental Commitments shall not exceed (A) in the case of any ~~request for~~ Incremental ~~Term Loan~~ Revolving Credit Commitments, ~~whether~~ $135,000,000; provided that the sum of the Incremental Revolving Credit Commitments plus the Existing Revolving Credit Commitments then in effect shall not exceed $155,000,000, plus (B) in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, $75,000,000, plus (CB) after the full utilization of the amounts available under clause (A) above, in the case of the Incremental Revolving Credit Commitments, and clause (B) above, in the case of both the Incremental Revolving Credit Commitments and the New Term Commitments, an additional amount of Incremental Revolving Credit Commitments and/or New Term Commitments so long as in the case of this clause (CB), the Senior Secured Leverage Ratio shall not exceed 2.75:1.00 as of the end of the Test Period most recently ended, both before and after giving Pro Forma Effect to such IncreasedIncremental Revolving Credit Commitments or New Term Loans (assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Commitments and any Incremental Revolving Credit Commitments after giving effect to such Incremental Revolving Credit Commitment and any Incremental Revolving Credit Commitments previously made pursuant to this Section 2.14 and excluding, for purposes of determining Consolidated Total Debt, the cash proceeds from the borrowing of the proposed Incremental Revolving Credit Commitments or New Term ~~Loan Commitments are commitments to make additional Term Loans~~ Loans) and (y) any such request shall be for an aggregate principal amount of ~~any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek~~ Incremental Commitments ~~from existing Lenders~~ that is not less than $5,000,000 (~~each of~~ or such lesser amount which shall be ~~entitled~~ approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Incremental Commitments indicated above and all such Incremental Commitments obtained prior to ~~agree~~ such date) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the applicable Incremental Commitments shall be effective, which shall be a US_ACTIVE:\44299297\214\35899.0483 date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (or ~~decline~~ such shorter period as shall be reasonably acceptable to ~~participate~~ the Administrative Agent) and (ii) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit Lender” or “New Term Lender”, as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or New Term Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Borrower shall first approach each existing Lender to provide any Incremental Commitment, which Lender may elect or decline, in its sole discretion) , to provide all or any ~~Additional Lender.~~ portion of such requested Incremental Commitment. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that, (~~b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i~~1) no Default or Event of Default shall have occurred and be continuing ~~immediately prior to~~ on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Commitments, ; (ii2) after giving effect to the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ making of any New Term Loans or effectiveness of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, ~~the Borrower, the Administrative Agent and~~ each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of ~~each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with~~ the conditions set forth in Section ~~4.02~~4.02 shall be satisfied; (3) the Incremental Revolving Credit Commitments or New Term Commitments, ~~all~~ as applicable, shall be effected pursuant to ~~the extent reasonably requested~~ one or more Joinder Agreements executed and delivered by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, ~~to effect~~ the ~~provisions~~ New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, and each of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may which shall be ~~necessary or appropriate~~ recorded in the ~~reasonable opinion of~~ Register, and each New Revolving Credit Lender and New Term Lender shall be subject to the ~~Administrative Agent and~~ requirements set forth in Section 10.15; (4) the Borrower shall make any payments required pursuant to Section 3.05 in connection with the ~~establishment of such new Class~~ Incremental Commitments, if applicable; and (5) the Borrower shall deliver or ~~tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant~~ cause to ~~this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act~~ be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held delivered any customary legal opinions or other documents reasonably requested by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent ~~and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere~~ in ~~this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence~~connection with any such transaction.

Appears in 1 contract

Sources: Credit Agreement (ClubCorp Holdings, Inc.)

Incremental Facilities. (a) The ~~Borrower may~~Company and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make term loans in Dollars (“Incremental Term Loans”) or increase Revolving Commitments available in Dollars, as applicable (such increases to Revolving Commitments, “Incremental Revolving Commitments”), by ~~written notice~~ executing and delivering to the Administrative Agent ~~from time to time, request Incremental Commitments in~~ an ~~amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ Increased Facility Activation Notice specifying (i) the amount of ~~the~~ such Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~Term Loans or Incremental Revolving Commitments, as applicable, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), applicable Increased Facility Closing Date and (iii~~) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv~~) in the case of ~~any request for~~ Incremental Term ~~Loan Commitments~~Loans, ~~whether~~ (x) the applicable Incremental Term Maturity Date, (y) the amortization schedule for such Incremental Term ~~Loan Commitments are commitments to make additional~~ Loans and (z) the Applicable Margin for such Incremental Term Loans ). Notwithstanding the foregoing, (i) without the consent of ~~any then outstanding Class or commitments to make~~ the Required Lenders, the aggregate amount of borrowings of Incremental Term Loans together with the aggregate amount of ~~a new Class. The Borrower may seek~~ Incremental Revolving Commitments ~~from existing Lenders~~ obtained after the Closing Date pursuant to this paragraph shall not exceed $100,000,000 and (ii) unless otherwise consented to by the Administrative Agent, each ~~of which~~ increase effected pursuant to this paragraph shall be ~~entitled to agree or decline~~ in a minimum amount of at least $10,000,000. Increased Facility Closing Dates may be selected by the Company after the Closing Date and specified in the applicable Increased Facility Activation Notice. Incremental Term Loans and Incremental Revolving Commitments shall become effective as of each relevant Increased Facility Closing Date; provided that (i) 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~~) or any Additional Lender.~~ , (~~b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i~~ii) no Default or Event of Default ~~shall have~~ has occurred and be is continuing ~~immediately prior to~~ or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall ~~not exceed 2.75:1.00~~result therefrom, (iii) the Company is in Pro Forma Compliance, (iv) the Company shall have delivered a certificate of a Responsible Officer to the effect set forth above, together with reasonably detailed calculations, (v) the representations and warranties set forth in ~~Article III and in each other Loan Document shall be~~ Section 4 are true and correct in all material respects ~~(or in all respects~~immediately prior to, ~~if qualified as to materiality) on~~ and ~~as of~~ after giving effect to, the ~~date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms~~ incurrence of such ~~Incremental Commitments and the~~ Incremental Term Loans or Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c).~~ Commitments, (cvi) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of~~ the Incremental Term Loans and Incremental Revolving Commitments shall ~~be determined by~~ rank pari passu or junior in right of payment and of security with the ~~Borrower and~~ Revolving Commitments, (vii) the Incremental Term ~~Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date~~ Maturity Date of any Incremental Term Loans shall be no earlier than the ~~Latest Maturity~~ Revolving Termination Date, ~~(ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans~~provided that, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect prior to the ~~Term Loans~~Revolving Termination Date, ~~(iv) if~~ the ~~All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the~~ aggregate amount of such ~~excess above 50 basis points being referred to herein as~~ installments for any four consecutive fiscal quarters shall not exceed 5.0% of the ~~“Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making~~ aggregate principal amount of such Incremental Term Loans on the date such Loans were first made and (vviii) to any Incremental Revolving Commitments shall have the ~~extent~~ same terms as the ~~terms of the~~ Revolving Commitments, and any Incremental Term ~~Loans are inconsistent with the terms set forth herein (~~Loans, except as ~~set forth in clause~~ permitted above, shall have (iA) ~~through~~ the same terms as the Loan Documents, as applicable, or (ivB) ~~above),~~ such other terms as shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (DealerTrack Holdings, Inc.)

Incremental Facilities. (a) ~~The~~ Parent Borrower ~~may~~shall have the right, ~~by written~~ but not the obligation, after the later of (i) the date on which a Successful Syndication occurs or (ii) the Closing Date, upon notice to the Administrative Agent ~~from time~~ (an “Incremental Borrowing Notice”), to ~~time~~request (A) additional term loans to be made pursuant to one or more additional tranches of term loans under this Agreement (the “Incremental Term Loan Facilities”), ~~request~~ and/or (B) one or more increases in the aggregate commitments under the Initial Revolving Facility (each, an “Incremental ~~Commitments~~ Revolving Increase”) (which may, with respect to any Incremental Revolving Increase, at the election of Parent Borrower and with the consent of the LC Issuer, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, an “Incremental Initial Revolving Facility,” the loans thereunder, the “Incremental Initial Revolving Loans”) (and each of the foregoing, an “Incremental Facility” and collectively, the “Incremental Facilities”), in each case, in an aggregate amount of up to (x) $50,000,000 minus the aggregate amount of Indebtedness incurred previously in reliance on this clause (x) and in reliance on clause (a)(x) of the definition of “Permitted Incremental Indebtedness,” plus (y) unlimited additional amounts so long as after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming the full amount thereof is drawn) and/or Permitted Incremental Indebtedness incurred under Section 7.03(v) and after giving effect to any Specified Transaction that may be consummated in connection therewith, the Secured Net Leverage Ratio (calculated on a Pro Forma Basis and provided that (I) all Permitted Incremental Indebtedness incurred under Section 7.03(v) shall also be included in such calculation for this purpose, whether or not it would otherwise be included and (II) the proceeds of the Incremental Facility being incurred shall not be netted against indebtedness for purposes of the calculation relating to such incurrence) shall not be greater than 3.00 to 1.00; provided that, : (1) no commitment of any Lender may be increased without the consent of such Lender; (2) at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below (A) no Event of Default exists after giving effect thereto; provided, however, that if the proceeds of such Incremental Facilities are used to finance a Permitted Acquisition or other Investment permitted by this Agreement (and costs reasonably related thereto), it shall only be required that no Specified Event of Default shall be continuing at the time of incurrence or would result therefrom and (B) all representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (except for (I) representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date and (II) representations and warranties qualified by materiality, which shall be true and correct in all respects); provided that, if otherwise agreed to by the Lenders providing any Incremental Facility the proceeds of which are to be used to finance a Permitted Acquisition or other Investment (other than an intercompany Investment) permitted by this Agreement such requirements in this clause (B) shall be deemed to refer solely to, the ~~aggregate amount~~ Specified Representations and the Specified Purchase Agreement Representations, which shall be true and correct in all material respects (except for (I) representations and warranties which expressly relate to an earlier date, which shall be true and correct in all material respects as of such earlier date and (II) representations and warranties qualified by materiality, which shall be true and correct in all respects); (3) any such Incremental Facility shall (x) rank pari passu or junior in right of payment with the Initial Facilities, (y) only benefit from guarantees that also guarantee the Initial Facilities and (z) be secured on a pari passu or junior basis by the Collateral or be unsecured (in which case, the Incremental Term Loan Facility pursuant to which the such Incremental Term Loans are extended will be established as a separate facility from the then existing Initial Term Loan Facility); provided that any Incremental Facility that ranks junior in right of payment or security with the Initial Term Loan Facility shall be subject to a Customary Intercreditor Agreement or otherwise subject to intercreditor arrangements that are reasonably satisfactory to the Administrative Agent; (4) any Incremental Facility that is an Incremental Revolving Increase shall be on the same terms and pursuant to the same documentation as the Initial Revolving Commitment; (5) the yield applicable to any Incremental Initial Revolving Facility shall be equal to the corresponding yield on the Initial Revolving Facility (calculated for such Incremental Initial Revolving Facility and Initial Revolving Facility inclusive of any original issue discount and/or upfront fee percentage paid to all Lenders, but exclusive of any arrangement, underwriting or similar fees); provided, that Parent Borrower may increase the pricing of the Initial Revolving Facility, without the consent of the Administrative Agent or any Lender, such that the foregoing is true, including increasing the Applicable Margin, the Commitment Fee, adding or increasing an existing Eurodollar floor (if applicable), and paying additional original issue discount and/or upfront fees; (6) in the case of a new Class of Incremental ~~Commitments established at or prior~~ Term Loans under an Incremental Term Loan Facility, the All-In Yield applicable to such ~~time does~~ Incremental Term Loans shall not ~~exceed~~ be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans, plus fifty (50) basis points per annum unless the interest rate (together with, as provided in the proviso below, the Eurodollar or Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on the Initial Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans, minus fifty (50) points; provided if such Incremental Term Loan includes an Eurodollar Rate floor greater than 1.00% per annum or a Base Rate floor greater than 2.00% per annum, such differential between the Eurodollar Rate or Base Rate floors shall be equated to the applicable All-In Yield for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the Eurodollar Rate or Base Rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the Eurodollar Rate or Base Rate floor (but not the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between the Eurodollar Rate or Base Rate floors; (7) (A) the maturity of any Incremental Term Loan Facility shall not be earlier than the Latest Maturity Date of the Initial Term Loans and (B) the Weighted Average Life to Maturity of any Incremental Term Loan Facility shall not be shorter than that of the Initial Term Loan Facility; (8) the Incremental Term Loan Facilities 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 with other then outstanding Initial Term Loans; (9) the covenants, events of default and guarantees of such Incremental Term Loan Facility may differ from the terms of the corresponding Initial Term Loan Facility; provided that the terms that are not substantially identical to the corresponding Initial Term Loan Facility (other than pursuant to the foregoing clauses (1) through (8) above), (A) shall be as mutually agreed upon between Parent Borrower and lenders providing such Incremental Term Loan Facility and reasonably satisfactory to the Administrative Agent and (B) shall not be more restrictive to Parent Borrower or any other Borrower, when taken as a whole, than the terms of the corresponding Initial Term Loan Facility unless (1) Lenders under the corresponding Initial Term Loan Facility also receive the benefit of such more restrictive terms (without any consent being required) or (2) any such provisions apply after the Latest Maturity Date of the corresponding Initial Term Loan Facility; and (10) Incremental Term Loan Facilities shall be requested in minimum amounts of $~~100,000,000~~2,500,000 or a higher multiple of $1,000,000 and (y) Incremental Revolving Increases shall be requested in minimum amounts of $1,000,000 or a higher multiple of $1,000,000. (b) The proceeds of each Incremental Facility may be used for any purpose not prohibited by this Agreement and as agreed to by the Parent Borrower and the lenders providing such Incremental Facility. (c) The commitments in respect of any Incremental Facilities may be denominated in U.S. Dollars and/or other currencies as agreed among Parent Borrower, the Administrative Agent and the lenders providing such Incremental Facilities. ~~Such notice~~ Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being ~~requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 10 five (5) Business Days nor more than 60 sixty (60) days after the date of ~~such notice (or such longer or shorter period as~~ Incremental Borrowing Notice, unless otherwise agreed to by the Administrative ~~Agent shall agree)),~~ Agent) and (iii) whether such Incremental ~~Commitments~~ Term Loan Commitments, if any, are ~~Incremental Revolving Credit~~ to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). (d) Any Borrower may seek Incremental Term Loan Commitments and ~~(iv) in the case of any request for~~ Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) ~~or any~~ and Additional ~~Lender. (b) It~~ Lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. Commitments in respect of Incremental Facilities shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental become Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in ~~all respects, if qualified as to materiality) on and as~~ the case of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or an Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c~~Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment)~~. (c) Incremental Commitments shall be established~~ , under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Amendment”) ~~relating~~ to this ~~Agreement~~Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, any Additional Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. ~~The terms of the~~ Incremental Term Loans ~~shall~~ may be ~~determined~~ made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender or by any Additional Lender, provided that the ~~Borrower~~ Administrative Agent, each LC Issuer and the ~~Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans~~ Swing Line Lender shall ~~be no earlier than the Latest Maturity Date, (ii) the average life~~ have consented to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (such Lender’s or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on Additional Lender’s making such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of or providing such Incremental ~~Term~~ Revolving Credit Commitments if any such consent would be required under Section 10.12(b) for an assignment of Loans ~~and (v)~~ or Revolving Commitments, as applicable, to ~~the extent~~ such Lender or Additional Lender. Each Incremental Amendment shall specify the terms of the Incremental Term Loans ~~are inconsistent~~ or Incremental Initial Revolving Loans, as applicable, to be made thereunder, consistent with the ~~terms set forth herein (except as~~ provisions set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in this Section ~~4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement~~2.16. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Assumption Agreement~~Amendment. ~~Any~~ Each of the parties hereto hereby agrees that, the Incremental ~~Assumption Agreement~~ Amendment may, without the consent of any other ~~Lender~~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 Parent Borrower, to effect the provisions of this Section ~~2.25~~2.16, ~~including~~ notwithstanding any ~~amendments necessary to establish~~ requirements of Section 10.12 (including, in the ~~Incremental Term Loan Commitments and~~ case of Incremental Term Loans structured as a ~~new Class~~ separate Class, the incorporation of class voting rights that prevent Lenders from agreeing to modifications that would allocate (or ~~tranche~~ reallocate) payments to the Lenders in a non-pro rata manner unless such modifications are agreed to by all of the Lenders holding the Loans or Incremental Term Loans ~~and such other technical amendments as may be necessary~~ or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25Incremental Revolving Credit Commitments whose payment rights are being modified). (e) Upon each ~~increase in the~~ Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Increase, each ~~Revolving Credit~~ Lender with a Revolving ~~Credit~~ Commitment of such Class 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 ~~Credit Lender~~ Increase (each, an “Incremental Initial Revolving Facility Lender”) in respect of such increase, and each such Incremental Initial Revolving ~~Credit~~ Facility Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit~~ Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving ~~Credit Lender~~ Commitment of such Class (including each such Incremental Initial Revolving ~~Credit~~ Facility Lender) will equal ~~its~~ the percentage of the aggregate Revolving ~~Credit Percentage~~Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall ~~upon~~ on or prior to the effectiveness of such Incremental Revolving ~~Credit Commitment~~ Increase be prepaid from the proceeds of additional Revolving Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving ~~Credit Commitments~~Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any ~~Revolving Credit~~ Lender in accordance with Section ~~2.16~~3.04. 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. (f) Notwithstanding the foregoing, no Incremental Amendment shall become effective under this Section 2.16 unless the Administrative Agent shall have received (i) a customary legal opinion covering the enforceability of the Incremental Amendment and other customary matters, (ii) customary reaffirmations and/or such amendments to the Security Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or the Incremental Initial Revolving Loans, as applicable, are provided with the benefit of the applicable Loan Documents and (iii) board resolutions and other closing certificates and documentation to the extent reasonably requested by the Administrative Agent. (g) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrowers agree that Section 3.04 shall apply to any conversion of Eurodollar Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased to account for the aggregate principal amount of such Incremental Term Loans. (h) This Section 2.16 shall supersede any provisions in Section 2.14 or 10.12 to the contrary. For the avoidance of doubt, any of the provisions of this Section 2.16 may be amende

Appears in 1 contract

Sources: Credit Agreement (PGT, Inc.)

Incremental Facilities. ~~(a)~~ The Borrower ~~may~~may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments ~~in an amount such that~~and/or (ii) the establishment of Incremental Term Commitments, ~~after giving effect thereto,~~ provided that the aggregate amount of all the Incremental Commitments established ~~at or prior to such time does~~ hereunder shall not exceed $~~100,000,000~~500,000,000. ~~Such~~ Each such notice shall ~~set forth~~ 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 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term ~~Loan Commitments~~ Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (ivy) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any ~~request for~~ proposed Incremental ~~Term Loan Commitments~~Revolving Lender, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments Issuing Bank and the ~~Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~Swingline Lender). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (NCR Corp)

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request ~~Incremental Commitments in an amount such that, after giving effect thereto~~(i) during the Availability Period, the ~~aggregate amount~~ establishment of Incremental Revolving Commitments ~~established at or prior to~~ and/or (ii) the establishment of Incremental Term Loan Commitments. Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ 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, and (B) the amount of the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, 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 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 Debt 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 ~~minimum increments~~ reliance on such clause (A)); provided that, for the avoidance of ~~$500,000~~ 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 any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a ~~minimum amount of $5,000,000~~single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall be treated substantially the ~~date on which such Incremental Commitments are requested to become effective~~ same as (~~which shall not be less than 10 Business Days nor~~ and in any event no more ~~than 60 days after~~ favorably than) the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)),~~ Revolving Loans and (iii) ~~whether~~ shall have the same Guarantees as and shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Revolving Loans (except in the case of clause (ii) and (iii) to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans. Any Incremental Term Loan Commitments ~~are~~ established pursuant to an Incremental ~~Revolving Credit Commitments or~~ 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 ~~(iv) in the case of any request for~~ Incremental Term ~~Loan Commitments~~Loans for all purposes of this Agreement. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, ~~whether~~ each Incremental Lender providing such Incremental ~~Term Loan~~ Commitments ~~are commitments~~ and the Administrative Agent; provided that (other than with respect to ~~make additional~~ the incurrence of Incremental Term Loans ~~of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each~~ the proceeds of which shall be ~~entitled~~ used to ~~agree or decline~~ 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 ~~participate in its sole discretion~~which conditions (i) ~~or any Additional Lender.~~ through (biii) It below shall ~~be a condition precedent to the effectiveness of any~~ not apply) no Incremental ~~Commitment that~~ Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to or and immediately after giving effect (including pro forma effect) to such Incremental ~~Commitments~~Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the ~~Total Leverage Ratio~~date of effectiveness thereof, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties of each Loan Party set forth in ~~Article III and in each other~~ the Loan ~~Document~~ Documents shall be true and correct in all material respects (or, if qualified by materiality or “Material Adverse Effect”, in all respects~~, if qualified as to materiality~~) on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ date, ~~such other date~~(iii) ~~and (iv) the terms of~~ after giving effect to such Incremental Commitments and the ~~Incremental Term~~ making of Loans or and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c). (c)~~ Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn but excluding the proceeds of any such Incremental Commitments for purposes of netting cash and Permitted Investments in the calculation of the Senior Secured Net Leverage Ratio), the Borrower shall be ~~established~~ in pro forma compliance with the financial covenants set forth in Section 6.11, (iv) the Borrower shall make any payments required to be made pursuant to ~~an amendment (an “~~Section 2.16 in connection with such Incremental ~~Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower~~ Commitments and the ~~Incremental Term Lenders~~ related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental ~~Assumption Agreement~~Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h), (i) or (j) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the ~~final maturity~~ 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 ~~any Incremental Term Loans shall be no earlier than~~ execution of the ~~Latest Maturity Date~~applicable Limited Conditionality Acquisition Agreement by the parties thereto, (ii4) ~~the average life to maturity~~ as of the date of the borrowing of such Incremental ~~Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of~~ Term Loans, customary “Sungard” representations and warranties (~~iii)~~ with such representations and warranties to be reasonably determined by the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on Lenders providing such Incremental Term ~~Loans exceeds~~ Loans) shall be true and correct in all material respects (or, in the ~~initial All-~~case of any representation or warranty qualified by materiality or Material Adverse Effect, in ~~Yield of~~ all respects) immediately prior to, and after giving effect to, the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making incurrence of such Incremental Term Loans and (v5) ~~to the extent the terms~~ as of the ~~Incremental Term Loans are inconsistent~~ date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall be in pro forma compliance with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions financial covenants set forth in Section ~~4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such~~ 6.11. Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this Section ~~2.25, including~~ and no consent of any ~~amendments necessary to establish~~ Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20. (d) 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 ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Commitments, each ~~Revolving Credit~~ Lender with a Revolving ~~Credit~~ Commitment (immediately prior to giving effect to such ~~increase will automatically and without further act be deemed to have assigned~~ Incremental Revolving Commitments) shall assign to each Incremental Revolving ~~Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Revolving Commitment, and each such Incremental Revolving ~~Credit~~ Lender ~~will automatically~~ shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each~~ all the Lenders with Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Credit~~ 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 ~~be prepaid~~ 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. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Borrower referred to in paragraph (a) above and of ~~additional~~ 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 ~~Loans made hereunder so that~~ Commitments, of the ~~Revolving Loans are thereafter held by~~ Applicable Percentages of the ~~Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the assignments required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~paragraph (e) above.

Appears in 1 contract

Sources: Credit Agreement (Medivation, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Effective Date, by written notice delivered to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) one or more new term loans which may be the ~~amount~~ same Class as any outstanding Class of Term Loans (a “Term Loan Increase”) and/or one or more new Classes of term loans (collectively, with any Term Loan Increase, the “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Term Loans”), (ii) one or more increases in the ~~date on which~~ amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (~~Revolving Credit Commitment Increase”) or ~~such longer or shorter period as the Administrative Agent shall agree)),~~ (iii) ~~whether such~~ one or more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments”, and together with the Incremental ~~Commitments are~~ Term Loans and the Incremental Revolving Credit ~~Commitments or~~ Commitment Increases, the “Incremental ~~Term Loan Commitments~~ Facilities” and ~~(iv)~~ the commitments in respect thereof are referred to as the ~~case of any request for~~ “Incremental ~~Term Loan~~ Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.”); provided that: (bi) ~~It shall be a condition precedent~~ after giving effect to the effectiveness of any Incremental ~~Commitment that~~ Agreement referred to below, except as set forth in the proviso to clause (ib) below, no ~~Default or~~ Event of Default shall ~~have occurred~~ exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be ~~continuing immediately prior~~ waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or ~~immediately~~ Section 11.5, which requirement may not be waived by such Incremental Lenders); and (ii) after giving effect to the incurrence of such Incremental ~~Commitments~~Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), ~~(ii)~~ the ~~Total Leverage Ratio, determined~~ Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period. (b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and following the Effective Date, the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitments ~~have been~~ then outstanding were fully ~~funded~~ drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period, that is no greater than 4.0:1.0 (the amounts under clause (A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with the Free and Clear Incremental Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and without ~~netting~~ regard to whether an Event of Default has occurred and is continuing, to the ~~proceeds~~ extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of ~~any~~ incurrence of such Incremental ~~Loans~~Term Loans to prepay Term Loans in accordance with the procedures set forth in Section 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and 95 LPL – A&R Credit Agreement without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall ~~not exceed 2.75:1.00,~~ be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided and (iii) the ~~representations~~ Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and ~~warranties set forth~~ Clear Incremental Amount or any combination thereof in ~~Article III and in each other Loan Document~~ accordance with Section 1.2(m) (and, absent such election, shall be ~~true and correct in~~ deemed to have used the Incurrence-Based Incremental Amount). Without limiting the foregoing, all ~~material respects (~~or ~~in all respects, if qualified as to materiality) on and as~~ any portion of the ~~date such~~ Free and Clear Incremental ~~Commitments become effective (~~Amount incurred concurrently with all or ~~if such representation and warranty relates~~ any portion of the Incurrence-Based Incremental Amount shall not count as Indebtedness for the purposes of calculating the applicable ratio pursuant to ~~another date, such other date) and (iv)~~ the ~~terms of such~~ Incurrence-Based Incremental ~~Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply~~ Amount in accordance with Section ~~2.25(c~~1.2(m). (c) (i) The Incremental ~~Commitments~~ Term Loans (I) shall ~~be established pursuant~~ rank pari passu in right of payment and of security with the Initial Term Loans, (II) shall not mature earlier than the Initial Term Loan Maturity Date, (III) shall not have a shorter Weighted Average Life to Maturity than the Initial Term Loan Facility, (IV) shall have an ~~amendment~~ amortization schedule (~~an “Incremental Assumption Agreement”~~subject to clause (III) ~~relating to this Agreement. The terms of~~ above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the Incremental Term Loans ~~shall be~~ as determined by the Borrower and the lenders of the Incremental Term ~~Lenders and set forth~~ Loans; provided, however, that if the Effective Yield in ~~the applicable Incremental Assumption Agreement; provided that (i) the final maturity date~~ respect of any Incremental Term Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof and established on or prior to the Initial Term Loan Maturity Date exceeds the Effective Yield in respect of the Initial Term Loans by more than 0.50%, then the Applicable Margin in respect of the Initial Term Loans shall be ~~no earlier than~~ adjusted so that the ~~Latest Maturity Date, (ii)~~ Effective Yield in respect of the ~~average life~~ Initial Term Loans is equal to ~~maturity~~ the Effective Yield of the Incremental Term Loans ~~shall be no shorter than~~ minus 0.50%; provided, further, to the ~~remaining average life to maturity~~ extent that any change in the Effective Yield of ~~any then-outstanding Class of Term Loans, (iii)~~ the ~~Incremental~~ Initial Term Loans ~~will rank pari passu with~~ is necessitated by this clause (~~or junior to~~c)(i) on the ~~Tranche B Term Loans~~ basis of an effective interest rate floor in ~~right of payment and with~~ respect ~~to security and the borrower and guarantors~~ of the Incremental Term ~~Loans shall be the same as the Borrower and Guarantors with respect to the Term~~ Loans, ~~(iv) if~~ the ~~All-~~increased Effective Yield in ~~Yield on such Incremental Term Loans exceeds~~ the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Initial Term Loans shall ~~automatically be increased~~ (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield ~~Differential, effective upon~~ effected solely by increases in the ~~making of such Incremental~~ interest rate floor(s) applicable to the Initial Term Loans and (vV) ~~to the extent the~~ may otherwise have terms and conditions different from those of the ~~Incremental~~ Initial Term ~~Loans are inconsistent with the terms set forth herein~~ Loans; provided that (except ~~as set forth in clause~~ with respect to matters contemplated by subclauses (~~i) through (iv) above~~II), ~~such terms~~ (III) and (IV) in above) any differences shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Fourth Amendment Agreement (LPL Financial Holdings Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~increase the existing Revolving Credit Commitments of any Class (any such increase, ~~request~~ the “Incremental Revolving Credit Commitments”) and/or increase the existing Term B Commitments in or any Incremental Term Loan Commitments and/or incur one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount ~~such that~~(1) not to exceed in the aggregate, ~~after giving effect thereto~~at the time of incurrence, the ~~aggregate amount~~ Incremental Available Amount referred to in clauses (a), (b) and (c)(i) of ~~Incremental Commitments established at or prior to~~ the definition thereof and (2) not less than, individually, $25,000,000. (b) Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice~~ Administrative Agent (or such ~~longer or~~ shorter period of time as may be agreed to by the Administrative Agent ~~shall agree~~in its sole discretion)); and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (~~iii~~each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) ~~whether~~ to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans 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 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 ~~and~~ shall become effective as of such Increased Amount Date; provided that: (ivi) (x) subject, solely in the case of ~~any request for~~ Incremental Term ~~Loan Commitments~~Loans, ~~whether such Incremental Term Loan Commitments are commitments~~ to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) Section 1.09(c), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ 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; provided that this clause (iii)(x) may be waived or limited as agreed in the ~~Total Leverage Ratio, determined on a Pro Forma Basis~~ Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (~~assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii~~y) the representations and warranties ~~set forth in Article III~~ of the Borrower and in each other Loan ~~Document~~ Party contained in Article 5 hereof shall be true and correct in all material respects (~~or in all respects, if~~ 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 ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ date, except in each case to the extent that such ~~other~~ representations and warranties specifically refer to an earlier date) , in which case they shall be true and ~~(iv) the terms~~ correct as of such ~~Incremental Commitments and~~ earlier date); provided that, in the case of Incremental Term Loans incurred to finance a Permitted Acquisition or ~~Incremental Revolving Loans thereunder~~ other Investment in the nature of an acquisition, this clause (i)(y) shall ~~comply with Section 2.25(c~~be limited to Sections 5.01(a)., 5.01(b), 5.02(a), 5.13, 5.17, 5.18, 5.19 (other than the first or second sentence thereof) and 5.20; (cii) with regard to the incurrence of any additional Class of Incremental ~~Commitments shall be established~~ Term Loans incurred pursuant to ~~an amendment (an “Incremental Assumption Agreement”) relating~~ this Section 2.14, the yield applicable to ~~this Agreement. The terms~~ each such additional Class of ~~the~~ Incremental Term Loans shall be determined by the Borrower and the applicable lenders under such additional Class of Incremental Term ~~Lenders and~~ Loans as set forth in the applicable Joinder Agreement; provided that the Effective Yield applicable to such additional Class of Incremental ~~Assumption Agreement~~Term Loans will not be more than fifty (50) basis points greater than the Effective Yield for the initial Term B Loans incurred on the Closing Date unless the interest rate margin with respect to the initial Term B Loans incurred on the Closing Date (and any Incremental Term Loans added to such Term B 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 the initial Term B Loans incurred on the Closing Date (and any Incremental Term Loans added to such Term B 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 rank pari passu in right of security with the other Facilities; (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 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 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 ~~final maturity date~~ 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 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 each Class shall be no earlier than the Latest Maturity ~~Date, (ii)~~ Date at the ~~average life to maturity~~ time of the incurrence of such Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the ~~All-in Yield on such~~ pricing of each Class of Incremental Term Loans ~~exceeds~~ may be subject to “most favored nations” provisions if and to the ~~initial All-~~extent set forth in ~~Yield of~~ the ~~Tranche B Term Loans by more than 50 basis points (the amount of~~ Joinder Agreement for such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans Class and (v) to in the ~~extent the terms~~ case of ~~the~~ Incremental Term ~~Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above)~~Loans, such ~~terms shall be reasonably satisfactory to~~ 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 mandatory prepayments of Term Loans hereunder, as specified in the ~~Administrative Agent. Any~~ applicable Joinder Agreement, and in the case of Incremental Revolving Credit ~~Commitment~~ 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. (h) The terms and provisions of the Incremental Revolving Loans ~~thereunder) shall be implemented as an increase to the Total~~ and Incremental Revolving Credit Commitments ~~and~~ shall be ~~on terms~~ identical to the ~~existing~~ other Revolving Credit Loans of the Class being so increased and the Revolving Credit Commitments ~~(and~~ of the Class being so increased; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving ~~Loans thereunder)~~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. (di) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25,~~ 2.14 (including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to ~~establish the Incremental Term Loan Commitments and~~ enable any Incremental Term Loans ~~as a new Class or tranche of~~ that are intended to be fungible with any other Term Loans ~~and~~ to be fungible with such other ~~technical~~ Term Loans, which shall include any amendments ~~as may be necessary or appropriate in~~ that modify the ~~reasonable opinion~~ aggregate principal amount of scheduled installment payments to the ~~Administrative Agent and~~ extent such amendment does not decrease the ~~Borrower in connection with the establishment of~~ installment payment an existing Term Lender would have received prior to giving effect to any such ~~new Class or tranche, in each case on terms consistent with this Section 2.25~~amendment). (ej) ~~Upon each increase~~ This Section 2.14 shall supersede any provisions in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect 2.13 or Section 10.01 to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 1 contract

Sources: Credit Agreement (Bellring Brands, Inc.)

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Invitation Homes Inc.)

Incremental Facilities. (a) ~~The~~ So long as no Event of Default under Subsection 9.1(a) or (f) exists or would arise therefrom, the Borrower ~~may~~shall have the right (on behalf of itself, ~~by written notice~~ or in the case of Incremental Loans the proceeds of which will be subject to ~~the Administrative Agent~~ an escrow or other similar arrangement, an Escrow Subsidiary (any such Escrow Subsidiary, an “Escrow Borrower”)), at any time and from time to ~~time~~time after the Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Existing Tranche of Existing Revolving Commitments (the “Supplemental Revolving Commitments”), (iv) to request new commitments under one or more new revolving facilities to be included in ~~an amount such~~ this Agreement (the “Incremental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after giving effect thereto,~~ (i) the aggregate amount of Incremental Commitments ~~established~~ permitted pursuant to this Subsection 2.8 shall not exceed, at ~~or prior~~ the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000Indebtedness, including to refinance other Indebtedness), an amount that could then be Incurred under this Agreement in compliance with Subsection 8.1(b)(i) and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the ~~date on which~~ definition of “Maximum Incremental Facilities Amount”, the Chief Financial Officer or a Responsible Officer of the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test). Any loans made in respect of any such Incremental ~~Commitments are requested to become effective~~ Commitment (~~which shall not be less~~ other than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (~~iv)~~ in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments ~~from existing Lenders~~ denominated in Dollars or the Dollar Equivalent thereof in the case of Incremental Commitments denominated in any Designated Foreign Currency (other than Canadian Dollars or Euros)), in a minimum aggregate amount of at least C$10,000,000 and in integral multiples of C$5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Canadian Dollars) or in a minimum aggregate amount of at least €7,500,000 and in integral multiples of €5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Euro) (or, in each ~~of which shall be entitled~~ case, such lower minimum amounts or multiples as agreed to ~~agree or decline to participate~~ by the Administrative Agent in its ~~sole~~ reasonable discretion) ); provided that such amount may be less than $10,000,000, C$10,000,000 or ~~any Additional Lender~~€7,500,000, as applicable, if such amount represents the then remaining aggregate principal amount available to be Incurred in compliance with Subsection 8.1(b)(i). (b) It Each request from the Borrower pursuant to this Subsection 2.8 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 other financial institution (any such other bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of the Swing Line Lender (if any) or any Issuing Bank (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be ~~a condition precedent~~ required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the ~~effectiveness~~ provisions of Subsection 11.6(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). The Borrower may agree, in its sole discretion, to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (~~i) no Default~~ or ~~Event of Default~~ permitted), then the Borrower shall have ~~occurred and be continuing immediately prior~~ the right to ~~or immediately after giving effect to~~ allocate such ~~Incremental Commitments, (ii)~~ commitments on whatever basis the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)Borrower determines is appropriate. (c) ~~Incremental~~ Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall ~~be established~~ become commitments under this Agreement pursuant to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ a supplement specifying the Tranche of ~~the Incremental~~ Term Loans ~~shall~~ or Revolving Commitments to be ~~determined~~ increased, executed by the Borrower and ~~the Incremental Term Lenders and set forth~~ each increasing Lender substantially in the ~~applicable Incremental Assumption Agreement; provided that (i)~~ form attached hereto as Exhibit I-1 or in such other form as may be appropriate in the ~~final maturity date~~ opinion of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and ~~Guarantors with respect to~~ the ~~Term Loans,~~ Administrative Agent (ivthe “Increase Supplement”) if or by each Additional Incremental Lender substantially in the ~~All-~~form attached hereto as Exhibit I-2 or in ~~Yield on~~ such ~~Incremental Term Loans exceeds~~ other form as may be appropriate in the ~~initial All-in Yield~~ opinion of the ~~Tranche B Term Loans by more than 50 basis points~~ Borrower and the Administrative Agent (the ~~amount of such excess above 50 basis points being referred to herein as the~~ “~~Yield Differential~~Lender Joinder Agreement”), ~~then~~ as the ~~Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential~~case may be, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms which shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver delivered to the Administrative Agent an for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental ~~Assumption~~ Lender shall be a Lender for all intents and purposes of this Agreement ~~providing for~~ and the term loan made pursuant to such ~~Incremental~~ Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, ~~and such other documentation~~ as ~~the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender~~applicable. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Each Increase Supplement and/or Lender ~~as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (including amendments to Subsection 2.2(b) to increase the amortization payments or interest rate margins thereunder or add customary call protection provisions with respect thereto to allow for the applicable Incremental Loans to be fungible with an existing Tranche of Term Loans hereunder) as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.8(c). (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement ~~and~~ pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, an Escrow Borrower (if applicable) and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower~~Administrative Agent, to effect the provisions of this ~~Section 2.25~~Subsection 2.8; provided, ~~including any amendments necessary to establish~~ however, that (i) (A) the Incremental ~~Term Loan~~ Commitments ~~and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may~~ will not be ~~necessary or appropriate in the reasonable opinion~~ guaranteed by any Subsidiary of the ~~Administrative Agent~~ Borrower other than the Subsidiary Guarantors (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Subsidiary Guarantor), and ~~the Borrower in connection~~ (other than with ~~the establishment~~ respect to proceeds of such ~~new Class~~ Incremental Commitments which are subject to an escrow or ~~tranche~~other similar arrangement and any related deposit of cash, ~~in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant~~ Cash Equivalents or Temporary Cash Investments to ~~this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically~~ cover interest and ~~without further act be deemed to have assigned to each Incremental Revolving Credit Lender~~ premium in respect of such ~~increase, and each~~ Incremental Commitments) will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Cash Flow Facilities Obligations (so long as any such Incremental ~~Revolving Credit Lender will automatically~~ Commitments (and ~~without further act be deemed~~ related Obligations) are subject to ~~have assumed~~the ABL/Cash Flow Intercreditor Agreement, a ~~portion~~ Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of ~~such existing Revolving Credit Lender~~payment with or (at the Borrower’s ~~participations hereunder~~ option) junior to the Cash Flow Facilities Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Lien on any asset (other than proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of cash, Cash Equivalents or Temporary Cash Investments to cover interest and premium in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness respect of such Incremental ~~Revolving Credit Commitment be prepaid~~ Loans) of any Loan Party that does not also secure the Cash Flow Facilities Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the ~~proceeds~~ Net Available Cash of ~~additional Revolving~~ Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans ~~made hereunder so that~~ provided pursuant to such Incremental Commitment Amendment and the ~~Revolving~~ disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Event or from Excess Cash Flow, to the extent the Net Available Cash of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans ~~are thereafter held by~~ pursuant to Subsection 4.4(e), on more than a ratable basis with the ~~Revolving Credit Lenders according to their Revolving Credit Percentages~~ Initial Term Loans (after giving effect to ~~the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and~~ any ~~costs incurred by any Revolving Credit Lender~~ amendment in accordance with ~~Section 2.16. The Administrative Agent~~ Subsection 11.1(d)(vi)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the Initial Revolving Maturity Date; (iv) the maturity date and the ~~Lenders hereby agree that~~ weighted average life to maturity of any Incremental Term Loan Commitments shall be no earlier than or shorter than, as the ~~minimum borrowing~~case may be, ~~pro rata borrowing and pro rata payment requirements contained elsewhere~~ the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity (1) for customary bridge financings, which, subject to customary conditions (as determined by the Borrower in ~~this Agreement~~ good faith, which determination shall be conclusive), would either be automatically converted into or required to be exchanged for permanent financing which does not ~~apply~~ provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable or (2) pursuant to an escrow or similar arrangement with respect to the ~~transactions effected~~ proceeds of such Incremental Term Loans); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the ~~immediately preceding sentence.~~Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any syndicated floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the MFN Threshold Amount, that are secured on a pari passu basis by the Collateral securing the Cash Flow Facilities Obligations and with a Stated Maturity that is earlier than 12 months following the Initial Term Loan Maturity Date Incurred by the Borrower under any Incremental Term Loan Commitment, made on or prior to the 12-month anniversary of the Third Amendment Effective Date and not Incurred to finance or refinance, or otherwise in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or any other Investment, are higher than the applicable interest rate margin for the Tranche B Term Loans by more than 75 basis points, then the effective interest rate margin for the applicable Tranche B Term Loans at the time such Incremental Commitments become effective (the “Existing Interest Rate”) shall be increased to the extent necessary so that the Existing Interest Rate is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points (the “Adjusted Interest Rate”, and the number of basis points by which the Existing Interest Rate is increased, the “Increased Amount”); provided, further that, in determining the applicable interest rate margins for the applicable Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Initial Term Loans or any Incremental Term Loan, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such Initial Term Loans are issued in a manner such that all such Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the applicable Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement or structuring fees payable in connection with the Incremental Term Loans or any other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall, in each case, be excluded; (C) any amendments to the Applicable Margin or effective interest rate margin on the applicable Initial Term Loans that became effective subsequent to the Closing Date but prior to the effective time of such Incremental Term Loans shall also be included in such calculations, (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the applicable Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such Initial Term Loans shall be required, to the extent an increase in the interest rate floor for such Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Initial Term Loans shall be increased by such amount to the extent necessary to adjust the applicable Existing Interest Rate to be equal to the applicable Adjusted Interest Rate, (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the applicable Tranche of Initial Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Initial Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Initial Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans

Appears in 1 contract

Sources: Cash Flow Credit Agreement (Cornerstone Building Brands, Inc.)

Incremental Facilities. (a) The Parent Borrower may, by written notice to the Administrative Agent ~~from time to~~ at any time, on one or more occasions, request to (i) add one or more new Classes of term facilities and/or increase the principal amount of any Class of Term Loans, any Incremental Term Loans or any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an ~~amount such that, after giving effect thereto, the~~ aggregate amount of not to exceed the Incremental ~~Commitments established at or prior to such time does not exceed $100,000,000~~Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) in ~~minimum increments of $500,000 and a minimum~~ an aggregate principal amount of not less than $~~5,000,000~~10,000,000, and $5,000,000 increments in excess thereof or (y) equal to the remaining Incremental Amount), (ii) the ~~date~~ applicable Borrower and (iii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (~~which shall not be~~ the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than ~~10 Business Days nor more~~ a pro rata basis (but not greater than ~~60 days after~~ pro rata basis) with the ~~date of~~ Revolving Facility. (b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such ~~notice (or such longer or shorter period as~~ other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall ~~agree))~~have consented (such consent not to be unreasonably withheld, ~~(iii~~delayed or conditioned) ~~whether~~ to such Additional Lender’s providing such Incremental ~~Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv~~Facilities if such consent would be required under Section 10.04(b) ~~in the case~~ for an assignment of ~~any request for Incremental Term Loan Commitments, whether~~ Loans to such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (bc) ~~It shall be a condition precedent to the effectiveness~~ The creation or provision of any Incremental ~~Commitment that (i) no Default~~ Facility or ~~Event~~ Incremental Loan shall not require the approval of ~~Default shall have occurred and be continuing immediately prior to~~ any existing Lender other than any existing Lender providing all or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds part of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans Facility or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder)Loan. (d) ~~In connection with any Incremental Commitments, the Borrower, the Administrative Agent~~ The applicable Borrower and each ~~applicable~~ Lender or Additional Lender providing a portion of the Incremental ~~Lender~~ Facilities shall execute and deliver to the Administrative Agent an Incremental ~~Assumption~~ Facility Agreement ~~providing for such Incremental Commitments,~~ and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental ~~Commitment~~ Facilities of ~~each Incremental~~ such Lender or Additional Lender. ~~Any~~ The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental ~~Assumption Agreement may include conditions for delivery~~ Facilities shall determine the terms of ~~opinions of counsel and other documentation consistent with~~ the ~~conditions~~ Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in ~~Section 4.02, all to~~ the ~~extent reasonably requested by~~ respective Incremental Facility Agreement; provided that: (i) the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent final maturity date of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan ~~Commitments and~~ shall be no earlier than the Latest Maturity Date with respect to Term Loans then outstanding, (ii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the then longest remaining weighted average life to maturity of the then-existing Term Loans, calculated as of the date of making such Incremental Term Loan, (iii) such Incremental Facilities shall be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date, (iv) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans as shall be made on a ~~new Class or tranche of~~ pro rata basis with all then-existing Term Loans (and all other then-existing Incremental Term Loans and ~~such other technical amendments as may be necessary or appropriate in~~ Specified Refinancing Term Loans requiring ratable prepayment), except that the ~~reasonable opinion of the Administrative Agent~~ applicable Borrower and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender lenders in respect of such ~~increase~~Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then-existing Revolving Commitments, (vi) the All-In-Yield (and ~~each~~ the components thereof) applicable to any Incremental Facility may be determined by the applicable Borrowers and the lender or lenders providing such Incremental Facility. (vii) to the extent an Incremental Revolving ~~Credit Lender will automatically~~ Facility is structured as an additional revolving facility under this agreement and ~~without further act be deemed~~ not as an increase to ~~have assumed, a portion of such~~ the existing Revolving ~~Credit Lender’s participations hereunder in outstanding Letters of Credit such that~~Commitments hereunder, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (x) no more than three (3) revolving facilities (including ~~each such Incremental Revolving Credit Lender~~any revolving facility constituting Specified Refinancing Debt) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be ~~accompanied by accrued interest on the Revolving Loans being prepaid and~~ outstanding hereunder at any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.one time,

Appears in 1 contract

Sources: Credit Agreement (Krispy Kreme, Inc.)

Incremental Facilities. (a) ~~The~~ So long as no Event of Default exists or would arise therefrom, the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Existing Tranche of Existing Revolving Commitments (the “Supplemental Revolving Commitments”), (iv) to request new commitments under one or more new revolving facilities to be included in ~~an amount such~~ this Agreement (the “Incremental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after giving effect thereto,~~ (i) the aggregate amount of Incremental Commitments ~~established~~ permitted pursuant to this subsection 2.9 shall not exceed, at ~~or prior~~ the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such ~~time does not exceed $100,000,000. Such notice shall set forth (i) the~~ Indebtedness to refinancing such other Indebtedness), an amount ~~of the Incremental Commitments being requested (which shall~~ that could then be Incurred under this Agreement in ~~minimum increments of $500,000 and a minimum amount of $5,000,000~~compliance with subsection 7.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the ~~date on which such~~ definition of “Maximum Incremental ~~Commitments are requested~~ Facilities Amount”, the Borrower shall have delivered a certificate to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative ~~Agent shall agree))~~Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) ~~whether~~ if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall 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 ~~Commitments are~~ Commitment. Any loans made in respect of any such Incremental ~~Revolving Credit Commitments or Incremental~~ Commitment (other than Supplemental Term Loan Commitments and ~~(iv~~Supplemental Revolving Commitments) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of shall be made by creating a new ~~Class~~Tranche. ~~The Borrower may seek~~ Each Incremental ~~Commitments from existing Lenders (each of which~~ Commitment made available pursuant to this subsection 2.9 shall be ~~entitled~~ in a minimum aggregate amount of at least $5.0 million and in integral multiples of $1.0 million in excess thereof (or in such lower minimum amounts or multiples as agreed to ~~agree or decline to participate~~ by the Administrative Agent in its ~~sole~~ reasonable discretion~~) or any Additional Lender~~). (b) It Each request from the Borrower pursuant to this subsection 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be ~~a condition precedent to~~ made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the ~~effectiveness of~~ Additional Incremental Lenders together with any ~~Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such~~ existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (iiin the case of a Supplemental Revolving Commitment) the ~~Total Leverage Ratio~~consent of the Swing Line Lender or any Issuing Bank (in each case, ~~determined on a Pro Forma Basis~~ such consent not to be unreasonably withheld or delayed) shall be required (~~assuming~~ it being understood that ~~all~~ any such Additional Incremental ~~Commitments have been fully funded and without netting~~ Lender that is an Affiliated Lender shall be subject to the ~~proceeds~~ provisions of ~~any Incremental Loans~~subsection 10.6(h), ~~shall not exceed 2.75:1.00~~mutatis mutandis, ~~(iii)~~ to the ~~representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects,~~ same extent as if ~~qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of~~ such Incremental Commitments and ~~the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~related Obligations had been obtained by such Lender by way of assignment). (c) ~~Incremental~~ Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall ~~be established~~ become commitments under this Agreement pursuant to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ a supplement specifying the Tranche of ~~the Incremental~~ Term Loans ~~shall~~ or Revolving Commitments to be ~~determined~~ increased, executed by the Borrower and ~~the Incremental Term Lenders and set forth~~ each increasing Lender substantially in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same form attached hereto as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points Exhibit V-1 (the ~~amount of such excess above 50 basis points being referred to herein~~ “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit V-2 (the “~~Yield Differential~~Lender Joinder Agreement”), ~~then~~ as the ~~Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential~~case may be, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms which shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing~~ for ~~such Incremental Commitments, and such other documentation as~~ recording in the ~~Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender~~Register. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent An Increase Supplement or ~~the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each~~ Lender ~~as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Joinder Agreement may, without the consent of any other Lender, effect such amendments to ~~this Agreement and~~ the ~~other~~ Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower~~Administrative Agent, to effect the provisions of this ~~Section 2.25~~subsection 2.9 (including to subsection 2.2(b) hereof) Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, ~~including any amendments necessary to establish the~~ as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental ~~Term Loans~~ Commitment Amendment”) to this Agreement and, as ~~a new Class or tranche~~ appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent of ~~Term Loans and~~ any other Lender, effect such ~~other technical~~ amendments to any Loan Documents as may be necessary or ~~appropriate~~ appropriate, in the ~~reasonable~~ opinion of the ~~Administrative Agent~~ Borrower and the Administrative Agent, to effect the provisions of this subsection 2.9; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the First Lien Loan Document Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement, the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in ~~connection~~ right of payment with or (at the ~~establishment~~ Borrower’s option) junior to the First Lien Loan Document Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of ~~such new Class~~ any Loan Party that do not also secure the First Lien Loan Document Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or ~~tranche~~Person the acquisition of which was financed, all or in ~~each case on terms consistent~~ part, with ~~this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments~~ Incremental Loans provided pursuant to ~~this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit~~ such Incremental Commitment ~~immediately prior to such increase will automatically~~ Amendment and ~~without further act be deemed to have assigned to each Incremental Revolving Credit Lender~~ the disposition of which was contemplated by any definitive agreement in respect of such ~~increase~~acquisition) or Recovery Event or from Excess Cash Flow, ~~and each such Incremental Revolving Credit Lender will automatically and without further act be deemed~~ to ~~have assumed, a portion~~ the extent the Net Cash Proceeds of such ~~existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit~~ Asset Disposition or Recovery Event or such ~~that, after giving effect~~ Excess Cash Flow are required to ~~each such deemed assignment and assumption of participations,~~ be applied to repay the ~~percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender~~ Initial Term Loans pursuant to subsection 3.4(c) or (~~including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If~~d), on more than a ratable basis with the ~~date of such increase, there are any Revolving~~ Initial Term Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to ~~the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and~~ any ~~costs incurred by any Revolving Credit Lender~~ amendment in accordance with ~~Section 2.16. The Administrative Agent~~ subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the Initial Revolving Maturity Date; (iv) the maturity date and the ~~Lenders hereby agree that~~ weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the ~~minimum borrowing~~case may be, ~~pro rata borrowing~~ the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable); (v) the interest rate margins and ~~pro rata payment requirements contained elsewhere in this Agreement shall not apply~~ (subject to clause (iv) above) amortization schedule applicable to the ~~transactions effected~~ loans made pursuant to the ~~immediately preceding sentence.~~Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest rate margins for any term loans Incurred by the Borrower under any Incremental Term Loan Commitment or under any Credit Facility Incurred pursuant to

Appears in 1 contract

Sources: First Lien Credit Agreement

Incremental Facilities. (ai) ~~The Borrower may~~After the Restatement Effective Date and before the Original Term Loan Maturity Date (with respect to Original Term Loans) and, the Tranche B Term Loan Maturity Date (with respect to Tranche B Term Loans), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative ~~Agent from time~~ Agent, may request the establishment of (x) one or more additional tranches of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to ~~time, request~~ the Maximum Incremental ~~Commitments in an amount such that,~~ Facilities Amount) and (y) after giving effect ~~thereto~~to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments ~~established at or prior to such time does~~ shall not exceed $~~100,000,000. Such notice shall set forth (i)~~ 785,000,000 plus the amount of the Term Loans repaid with the proceeds of (1) Senior Unsecured 2019 Notes or (2) any Incremental Term Loans; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new ClassAgent. The Borrower may ~~seek~~ approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments ~~from existing Lenders (each~~ other than a Lender, an affiliate of ~~which~~ a Lender or an Approved Fund, shall be ~~entitled~~ reasonably acceptable to ~~agree~~ the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or ~~decline to participate in its sole discretion) or any Additional Lender~~delayed). (b) It In each case, such Incremental Commitments shall ~~be a condition precedent to~~ become effective as of the ~~effectiveness of any Incremental Commitment that~~ applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition and the Tranche A Term Loans, no Default or Event of Default shall have occurred and be continuing ~~immediately prior to~~ on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Commitments, , (ii) except for any Incremental Loan Commitment in connection with the ~~Total Leverage Ratio~~DTA Acquisition or the Avis Europe Acquisition, ~~determined on a Pro Forma Basis (assuming that all~~ the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments ~~have been fully funded and without netting~~ (provided, in the ~~proceeds~~ case of the Incremental Synthetic Facility, not giving effect to any ~~Incremental Loans~~deemed usage thereof)~~, shall not exceed 2.75:1.00,~~ , (iii) the ~~representations and warranties set forth in Article III and in each~~ weighted average life to maturity of any Incremental Term Loan (other ~~Loan Document~~ than any Incremental Tranche A Term Loan) shall be ~~true and correct in all material respects (~~greater than or ~~in all respects, if qualified as~~ equal to ~~materiality) on and as~~ the then-remaining weighted average life to maturity of the ~~date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and~~ Term Loans, (iv) the ~~terms~~ maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after 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 but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such 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 the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental ~~Commitments and the Incremental Term Loans or Incremental~~ Revolving Loans ~~thereunder shall comply with Section 2.25(c).~~ that is in effect on the Increased Amount Date (~~c) Incremental Commitments shall be established pursuant~~ giving effect to ~~an amendment (an “Incremental Assumption Agreement”) relating~~ any OID issued or such upfront fees paid to ~~this Agreement. The terms~~ all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) (x) with respect to the Term Loans ~~shall be determined by~~ (other than the ~~Borrower~~ Tranche A Term Loans, any other Incremental Tranche A Term Loans and the ~~Incremental~~ Tranche B Term ~~Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i)~~ Loans), if the final maturity date of any Incremental Term Loans ~~shall be no earlier~~ is not at least one year later than the ~~Latest~~ Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (iiexcept for any Incremental Tranche A Term Loans) ~~the average life~~ (after giving effect to ~~maturity~~ OID or upfront fees paid to all of the Incremental Term ~~Loans shall be no shorter than the remaining average life~~ Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to ~~maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with~~ one or more arrangers (or ~~junior to~~their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the ~~Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ manner set forth above)) shall ~~be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans~~ not exceed by more than 50 basis points the sum of (x1) the ~~amount~~ Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and, any other Incremental Tranche A Term Loans and the Tranche B Term Loans), and (y2) the upfront fees paid to all of the Lenders in respect of such ~~excess above~~ Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (x1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (y2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (z3) 50 basis points, and (y) with respect to the Tranche B Term Loans, the interest rate margin in respect of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) incurred after the Tranche B Term Facility Funding Date (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being ~~referred~~ equated to ~~herein as~~ interest rate in the ~~“Yield Differential”~~manner set forth above)~~, then~~ ) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Tranche B Term Loans that is in effect on the Increased Amount Date, and (2) the upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans, which shall ~~automatically~~ be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Tranche B Term Loans shall be increased by so that the ~~Yield Differential, effective upon the making~~ interest rate margin in respect of such Incremental Term ~~Loans and~~ Loan (v) after giving effect to ~~the extent the terms~~ any OID issued or such upfront fees paid to all of the Incremental Term ~~Loans are inconsistent with the terms~~ Loan Lenders in connection therewith as set forth ~~herein~~ above) is no greater than the sum of (~~except~~ 1) the Applicable Margin for such Tranche B Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (~~i) through (iv) above~~vii), ~~such terms~~ and (viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably ~~satisfactory~~ acceptable to the Administrative ~~Agent~~Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C 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, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. (c) On any Increased Amount Date on which Incremental Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (y) 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 (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans ~~thereunder)~~ and Incremental Revolving Commitments shall be ~~implemented as an increase to the Total Revolving Credit Commitments and shall be on terms~~ substantially identical to the ~~existing~~ Revolving ~~Credit Commitments (~~Loans and the Revolving ~~Loans thereunder)~~Commitments of the Revolving Facility. (d) ~~In connection with~~ On any Increased Amount Date on which any Incremental ~~Commitments~~Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~Borrower~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~the Administrative Agent~~ and (ii) each ~~applicable~~ Incremental Synthetic L/C Lender shall ~~execute and deliver~~ become a Lender hereunder with respect to the ~~Administrative Agent an~~ Incremental ~~Assumption Agreement providing for such Incremental Commitments,~~ Synthetic L/C Commitment and ~~such other documentation as the Administrative Agent shall reasonably specify to evidence~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25~~2.23. Notwithstanding anything in this Agreement to the contrary, ~~including any amendments necessary~~ (i) the references to ~~establish~~ the Term Loans in this Section 2.23 shall be deemed to include the Replacement Term Loans and (ii) the references to the Revolving Commitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, as applicable. For the avoidance of doubt, (i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans, and (ii(ii) the Tranche B Term loans constitute Incremental Term Loans, and (iii) the Tranche A Term Lenders shall be Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or trancheLenders, in each ~~case on terms consistent with~~ case, for all purposes of this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent Agreement 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 sentenceother Loan Documents.

Appears in 1 contract

Sources: Incremental Tranche B Term Facility Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) ~~The Borrower~~ Subject to the terms and conditions set forth herein (including Section 11.2) the Lenders agree that the Company may, by on one occasion prior to the Termination Date, deliver a written notice to the Administrative Agent ~~from time to time~~(an "Incremental Request") requesting the making of term loans (the "Incremental Term Loans"; and the credit facility for making any Incremental Term Loans is the "Incremental Term Facility") and/or the increase of the Commitment Amount (the increased Commitments, ~~request~~ the "Incremental ~~Commitments~~ Commitments"; and revolving loans made thereunder the "Incremental Revolving Loans"; and the credit facility for making any Incremental Revolving Loans is the "Incremental Revolving Facility"; together with the Incremental Term Facility, the "Incremental Facility"; the Incremental Revolving Loans together with the Incremental Term Loans, the "Incremental Loans") in an aggregate principal amount ~~such that~~mutually agreed by the Company, the Administrative Agent and each Lender providing all or a portion of the Incremental Facility; provided that immediately prior to and after giving effect ~~thereto, the aggregate amount of Incremental Commitments established at or prior~~ to ~~such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of~~ the Incremental ~~Commitments being requested~~ Facility Amendment (~~which shall be in minimum increments~~ as defined below) and the making of ~~$500,000 and a minimum amount of $5,000,000~~any Incremental Loans pursuant thereto), (iix) no Event of Default or Unmatured Event of Default has occurred and is continuing or would result therefrom and (y) the ~~date~~ Company is in compliance with the covenants set forth in Section 10.10 and 10.11 calculated on a pro forma basis as of the most recently ended period of 12 consecutive months for which financial statements are available and after giving pro forma effect to such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional LenderLoans. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental CommitmentsThe existing Lenders may, ~~(ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans),~~ but shall not ~~exceed 2.75:1.00~~be obligated to, participate in the Incremental Facility. The Company make seek one or more new Persons (~~iii~~each of which must be consented to by the Administrative Agent and each Issuing Lender, unless such Person is an Affiliate of a Lender or an Approved Fund) to be added as Lenders for purposes of participating in such remaining portion (with allocations among the ~~representations and warranties set forth in Article III and in each other Loan Document shall~~ applicable Lenders to be ~~true and correct in all material respects (or in all respects, if qualified as to materiality) on and as~~ determined by agreement of the ~~date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments~~ Administrative Agent and the ~~Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~Company). (c) The proceeds of the Incremental ~~Commitments~~ Loans shall be ~~established pursuant~~ used to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement~~consummate one or more acquisitions permitted hereunder and approved by the Administrative Agent, for working capital purposes and for other general corporate purposes of the Company. The ~~terms~~ maturity date of any Incremental Loans shall be no earlier than the Termination Date. Each Incremental Loan shall be pari passu with all Loans. The interest rates for the Incremental Loans and amortization schedule applicable to the Incremental Term Loans shall be determined mutually and reasonably by the ~~Borrower~~ Company, the Administrative Agent and the ~~Incremental Term~~ Lenders ~~and set forth in~~ providing the applicable Incremental ~~Assumption Agreement; provided that (i) the final maturity date of any~~ Loans. The Incremental ~~Term Loans~~ Facility shall be ~~no earlier than~~ on terms and pursuant to documentation applicable to the ~~Latest Maturity Date,~~ Commitments and Loans that are then outstanding (~~ii)~~ except to the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors extent permitted above with respect to the ~~Term Loans~~maturity date, ~~(iv~~amortization and interest rate) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be or otherwise reasonably satisfactory to the Administrative Agent. Any ~~Incremental Revolving Credit Commitment (and~~ Lender providing a portion of the Incremental ~~Revolving Loans thereunder) shall be implemented~~ Facility may receive a market-based upfront fee in connection therewith as ~~an increase to~~ mutually agreed by the ~~Total Revolving Credit Commitments~~ Company, the Administrative Agent and ~~shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder)~~such Lender. (d) ~~In connection with any~~ The Incremental ~~Commitments~~Facility shall be evidenced by an amendment (the "Incremental Facility Amendment") to this Agreement, giving effect to the ~~Borrower~~modifications permitted by this Section 6.2 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Company, the Administrative Agent and each ~~applicable~~ Lender (including any new Lender, if any) providing a portion of the Incremental ~~Lender~~ Facility, which such amendment, when so executed, shall ~~execute and deliver~~ amend this Agreement as provided therein. The Incremental Facility shall also require such amendments to the ~~Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments~~other Loan Documents, and such other ~~documentation~~ new Loan Documents, as the Administrative Agent ~~shall~~ reasonably ~~specify~~ deems necessary or appropriate to ~~evidence~~ effect the modifications permitted by this Section 6.2. Neither the Incremental ~~Commitment~~ Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than any Lender providing a portion of the Incremental Facility and the Administrative Agent, in order to be effective. The effectiveness of the Incremental Facility Amendment shall be subject to, among other things, the satisfaction on the date thereof (the "Incremental Facility Closing Date") of each ~~Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery~~ of ~~opinions of counsel and other documentation consistent with~~ the conditions set forth in Section ~~4.02~~11.2, ~~all~~ and, except as otherwise specified in the Incremental Facility Amendment, the Administrative Agent shall have received customary legal opinions as to ~~the extent~~ matters reasonably requested, board resolutions and other customary closing documents and certificates reasonably requested by the Administrative Agent in connection therewith. Notwithstanding anything to the contrary in this Section 6.2, no existing Lender shall be obligated to provide any Incremental Loan or ~~the other parties~~ Incremental Revolving Commitment (unless such Lender, in its sole and absolute discretion, agrees to provide such Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each~~ Loan or Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25Revolving Commitment). (e) ~~Upon each increase in~~ For the ~~Revolving Credit Commitments pursuant to this Section ‎2.25~~avoidance of doubt, ~~each Revolving Credit Lender~~ only Lenders with a ~~Revolving Credit~~ Commitment ~~immediately prior~~ shall have any rights or obligations with respect to ~~such increase will automatically and without further act be deemed to have assigned to each~~ the Loans (other than Incremental ~~Revolving Credit Lender~~ Term Loans) or participations in ~~respect~~ Letters of ~~such increase~~Credit, and ~~each such Incremental Revolving Credit Lender will automatically~~ the term "Percentage" and ~~without further act be deemed~~ pro rata share as used with respect to ~~have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding~~ the Letters of Credit ~~such that~~and Loans (other than Incremental Term Loans), ~~after giving effect to each such deemed assignment~~ including for purposes of Section 2.6, 5.1 and ~~assumption of participations~~5.3, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall ~~upon the effectiveness of such Incremental Revolving Credit Commitment~~ be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect calculated without reference to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceIncremental Term Loans.

Appears in 1 contract

Sources: Credit Agreement (Nu Skin Enterprises Inc)

Incremental Facilities. ~~(a)~~ The Borrower ~~may, by written notice to the Administrative Agent~~ may at any time and from time to time, ~~request Incremental Commitments in an amount such that, after giving effect thereto,~~ by delivery to the ~~aggregate amount~~ Administrative Agent of ~~Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such~~ a written notice ~~shall set forth (i) the amount~~ signed by a Responsible Officer of the ~~Incremental Commitments being requested~~ Borrower (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as whereupon the Administrative Agent shall ~~agree)~~promptly deliver a copy to each of the Lenders), request the addition of a new tranche of term loans (~~iii~~an “Incremental Term Facility”), a new tranche of revolving loans (an “Incremental Revolving Tranche Facility” and, together with the Incremental Term Facility, the “Incremental Facilities”) ~~whether such Incremental Commitments are Incremental~~ or an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving Commitment”) or a combination thereof in an aggregate amount for all such Incremental Facilities and Incremental Revolving Commitments at any time outstanding not exceeding, at any time of determination, the greater of (a) $250,000,000 minus the aggregate principal amount of all Additional Notes issued pursuant to subsection 8.2(e) outstanding at the time of the effectiveness of the applicable Incremental Facility or Incremental ~~Term Loan Commitments~~ Revolving Commitment and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) ~~It shall~~ the maximum amount of such Incremental Facility or Incremental Revolving Commitment which may be ~~a condition precedent~~ incurred in order for the Consolidated Senior Secured Leverage Ratio (after giving pro forma effect to such incurrence) to remain less than or equal to 2.75 to 1.00; provided that at the time of any such request and upon the effectiveness of ~~any~~ the Incremental ~~Commitment that~~ Facility Amendment referred to below, (i) no Default or Event of Default shall ~~have occurred~~ exist, and (ii) Holding shall be ~~continuing~~ in Pro Forma Compliance; provided, further, that for purposes of clause (b) and clause (ii) in the proviso above, in the case of an Incremental Revolving Tranche Facility or Incremental Revolving Commitment, the Consolidated Senior Secured Leverage Ratio and the Financial Covenants shall be calculated as if such Incremental Revolving Tranche Facility or Incremental Revolving Commitment were fully drawn but using only the actual Total Revolving Credit Outstandings (and not the amount of the Revolving Credit Commitment) under the Revolving Credit Facility in effect immediately prior to ~~or immediately after giving effect to~~ the closing of such Incremental ~~Commitments~~Revolving Tranche Facility or Incremental Revolving Commitment. Each Incremental Term Facility shall be in an aggregate principal amount not less than $50,000,000, and each Incremental Revolving Tranche Facility and Incremental Revolving Commitment shall be in an aggregate principal amount not less than $25,000,000. Each Incremental Facility (iia) shall rank pari passu or junior in right of payment and of security with the ~~Total Leverage Ratio, determined~~ Revolving Credit Loans and the Term Loans and shall contain provisions as to the requirement that any Lien thereunder on ~~a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting~~ an property also granted to or held by the ~~proceeds of~~ Administrative Agent under any ~~Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other~~ Loan Document shall be ~~true~~ released on any Collateral Release Date as provided herein, (b) in the case of an Incremental Revolving Tranche Facility, shall not mature earlier than the Termination Date with respect to the Revolving Credit Facility, (c) in the case of an Incremental Term Facility, shall not mature earlier than the Termination Date with respect to the Term A Facility (but may, subject to clause (d) below, have amortization and ~~correct~~ commitment reductions prior to such date), (d) in ~~all material respects (or in all respects~~the case of an Incremental Term Facility, ~~if qualified as to materiality) on and as~~ shall have a weighted average life that is not less than that of the ~~date~~ Term A Loans, (e) in the case of an Incremental Term Facility, for purposes of rights to payment, prepayments and voting, shall be treated no more favorably than the Term A Loans and (f) shall not contain additional or different covenants or financial covenants which are more restrictive than the covenants herein on the Effective Date or the Financial Covenants unless otherwise consented to by the Administrative Agent. Any such notice shall set forth the amount and terms of the relevant Incremental Facility or Incremental Revolving Commitment requested by the Borrower and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental ~~Commitments become effective~~ Facility or providing such Incremental Revolving Commitment. The Borrower may arrange for one or more banks or other financial institutions, each of which shall be reasonably satisfactory to the Administrative Agent and the Borrower and, with respect only to Incremental Revolving Tranche Facilities and Incremental Revolving Commitments, the Swing Line Lender, the L/C Issuer and the Alternative Currency Funding Fronting Lender (any such bank or if other financial institution being called an “Additional Lender”), to extend commitments under the Incremental Facility or provide a portion of the Incremental Revolving Commitment, and each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such ~~representation and warranty relates to another date, such other date) and (iv) the terms~~ Incremental Facility or provide a portion of such Incremental Revolving Commitment. Commitments ~~and the~~ in respect of Incremental ~~Term Loans~~ Facilities or any Incremental Revolving ~~Loans thereunder~~ Commitment shall ~~comply with Section 2.25(c). (c) Incremental~~ become Commitments under this Agreement, and each Additional Lender shall ~~be established~~ become a Lender under this Agreement, pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Facility Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the ~~Borrower~~ Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ An Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents ~~as may be~~ to the extent (but only to the extent) necessary ~~or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,~~ to effect the provisions of this ~~Section 2.25, including~~ Section. The effectiveness of any ~~amendments necessary~~ Incremental Facility Amendment shall be subject to ~~establish~~ the ~~Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche~~ satisfaction on the date thereof of ~~Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion~~ each of the ~~Administrative Agent and the Borrower~~ conditions set forth in ~~connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25.~~ subsection 6.2 (~~e) Upon each increase in the Revolving Credit Commitments pursuant~~ it being understood that all references to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on “the date of such ~~increase, there are any Revolving Loans outstanding,~~ Borrowing” in such ~~Revolving Loans~~ subsection 6.2 shall ~~upon~~ be deemed to refer to the ~~effectiveness~~ effective date of such Incremental ~~Revolving Credit Commitment be prepaid from~~ Facility Amendment) and the delivery of customary legal opinions. The proceeds of ~~additional~~ the Incremental Facilities or any Incremental Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall Commitment will be ~~accompanied by accrued interest on the Revolving Loans being prepaid~~ used for working capital and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceother general corporate purposes.

Appears in 1 contract

Sources: Credit Agreement (Graphic Packaging Holding Co)

Incremental Facilities. (a) ~~The Borrower may, by written notice~~ Subject to the ~~Administrative Agent~~ terms and conditions set forth herein and so long as no Default or Event of Default has occurred and is continuing, the Borrower shall have the right, at any time and from time to ~~time~~time prior to the Maturity Date, ~~request~~ to incur additional Indebtedness under this Credit Agreement in the form of (i) one or more increases to the Revolving Committed Amount (each an “Increased Revolver Commitment”) which shall constitute one and the same Facility as the existing Revolving Commitments or (ii, (ii) one or more increases to the Term Loan Committed Amount which shall constitute one and the same Facility as the existing Term Loan Commitments (each an “Increased Term Loan Commitment”) or (iii) one or more commitments (each, an “Incremental Facility Commitment”, and together with the Increased Revolver Commitments and the Increased Term Loan Commitment, the “Incremental Commitments”) for additional term loan facilities which shall constitute a new Facility as provided in Section 2.22(d) below (an “Incremental Facility,”, and the loans thereunder, “Incremental Loans”), up to a maximum aggregate amount of Incremental Commitments not to exceed $400,000,000in an aggregate principal amount such that, on a Pro Forma Basis after giving effect to such Incremental Commitments (and treating any Incremental Commitments being so incurred as fully drawn for the purposes of such calculation), the Borrower is in compliance with the financial covenants set forth in Section 5.09; provided that, if the Collateral Event has occurred, the aggregate amount of all Incremental Commitments shall not exceed at the time any such Incremental Commitments are entered into the sum of (x) the greater of (x) $400,000,000 andi) $290,000,000 and (ii) 100% of Consolidated EBITDA, plus (y) an amount such that, on a Pro Forma Basis after giving effect ~~thereto, the aggregate amount of~~ to such Incremental Commitments ~~established at or prior to~~ (and assuming such ~~time~~ Incremental Commitments are fully drawn and/or funded, as applicable, and applied for the purpose intended) the Consolidated Secured Net Leverage Ratio does not exceed ~~$100,000,000~~3.00 to 1.00; provided, further, that no Incremental Commitments shall be permitted from the Amendment No. ~~Such notice~~ 3 Effective Date through September 30, 2021.1.00. (b) The following terms and conditions shall ~~set forth~~ apply to each Increased Revolver Commitment: (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the ~~amount~~ extent applicable) with the other Credit Party Obligations on a pari passu basis and will not be guaranteed by any obligor or secured by any assets that do not guarantee or secure, respectively, the Credit Party Obligations, (ii) each Increased Revolver Commitment shall have the same terms (including interest rate and maturity date but other than with respect to any upfront fees) as the existing Revolving Commitments, (iii) each Increased Revolver Commitment shall be entitled to the same voting rights as the existing Revolving Commitments, voting as one class, and shall be entitled to receive a pro rata share of proceeds of prepayments on the ~~Incremental Commitments being requested~~ same basis as the existing Revolving Loans and shall be considered an increase to the existing Revolving Commitments, (~~which~~ iv) each Increased Revolver Commitment shall be obtained from existing Lenders or from other banks, financial institutions or Funds, in each case in accordance with the terms set forth below, (v) the proceeds of all Loans thereunder will be used for the purposes set forth in Section 3.11, (vi) the Borrower shall execute a Note in favor of any new Lender or any existing Lender requesting a Note whose Revolving Commitment is increased, (vii) on the effective date of each such increase, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (viii) each such Increased Revolver Commitment shall be in ~~minimum increments of $500,000 and~~ a minimum amount of $~~5,000,000~~5,000,000 (and $1,000,000 increments in excess thereof), and (iiix) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall ~~agree))~~have received from the Borrower (A) resolutions, ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ legal opinions and other corporate authority documents reasonably requested by the Administrative Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (ivB) updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the ~~case~~ Administrative Agent, demonstrating that, after giving effect to such Increased Revolver Commitment and any borrowings thereunder and the application thereof on a Pro Forma Basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 (provided that for purposes of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. this clause (b) It the applicable Consolidated Net Leverage Ratio shall be a 4.50 to 1.00 for any fiscal quarter and, if the Collateral Event has occurred, the condition ~~precedent to~~ in the ~~effectiveness of any Incremental Commitment that (i~~proviso set forth in Section 2.22(a)) and no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agentexist. Any ~~Incremental~~ new banks, financial institutions and Funds that become Revolving ~~Credit Commitment (and the Incremental Revolving Loans thereunder)~~ Lenders that were not previously Lenders hereunder shall ~~be implemented as an increase~~ enter into such joinder agreements to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation give effect thereto as the Administrative Agent ~~shall~~ may reasonably ~~specify to evidence the Incremental Commitment of each Incremental Lender~~request. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in In connection with the ~~establishment~~ closing of any Increased Revolver Commitment, the outstanding Revolving Loans and Participation Interests shall be reallocated by causing such ~~new Class or tranche, in each case on terms consistent with this Section 2.25.~~ fundings and repayments (ewhich shall not be subject to any processing and/or recordation fees) ~~Upon each increase in~~ among the Revolving ~~Credit Commitments pursuant to this~~ Lenders (with the Borrower responsible for any costs arising under Section ~~‎2.25, each~~ 2.15 resulting from such reallocation and repayments) of Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit Loans as necessary such that, after giving effect to ~~each~~ such ~~deemed assignment and assumption of participations~~Increased Revolver Commitments, ~~the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by~~ each Revolving ~~Credit~~ Lender ~~(including each such Incremental~~ will hold Revolving ~~Credit Lender) will equal~~ Loans and Participation Interests based on its Revolving ~~Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit~~ Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages Percentage (after giving effect to ~~the increase in Revolving Credit~~ such Increased Revolver Commitments). (c) The following terms and conditions shall apply to each Term Loan issued pursuant to an Increased Term Loan Commitment (each, ~~which prepayment~~ an “Increased Term Loan”): (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the extent applicable) with the other Credit Party Obligations on a pari passu basis, (ii) each Increased Term Loan shall have the same terms (including interest rate and maturity date) as the existing Term Loans, (iii) each Increased Term Loan shall be ~~accompanied by accrued interest~~ entitled to the same voting rights as the existing Term Loans, voting as one class, and shall be entitled to receive a pro rata share of proceeds of prepayments on the ~~Revolving~~ same basis as the existing Term Loans ~~being prepaid~~ and ~~any costs incurred by any Revolving Credit Lender~~ shall be considered an increase to the existing Term Loans, (iv) each Increased Term Loan Commitment shall be obtained from existing Lenders or from other banks, financial institutions or Funds, in each case in accordance with the terms set forth below, (v) the proceeds of each Increased Term Loan thereunder will be used for the purposes set forth in Section ~~2.16. The~~ 3.11, (vi) the Borrower shall execute a Note in favor of any new Lender or any existing Lender requesting a Note whose Term Loan Commitment is increased, (vii) on the date of incurrence of the Increased Term Loan, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (viii) each Increased Term Loan Commitment shall be in a minimum amount of $5,000,000 (and $1,000,000 increments in excess thereof), (ix) proper adjustment to the remaining amortization installments pursuant to Section 2.2(b) shall be made and (x) the Administrative Agent shall have received from the Borrower (A) resolutions, legal opinions and other corporate authority documents reasonably requested by the Administrative Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (B) updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to the borrowing of such Increased Term Loan and the application thereof on a Pro Forma Basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 (and, if the Collateral Event has occurred, the condition in the proviso set forth in Section 2.22(a)) and no Default or Event of Default shall exist. Any new banks, financial institutions and Funds that become Term Loan Lenders ~~hereby agree~~ that were not previously Lenders hereunder shall enter into such joinder agreements to give effect thereto as the ~~minimum borrowing~~Administrative Agent may reasonably request. In connection with the closing of any Increased Term Loan, ~~pro rata borrowing~~ the outstanding Term Loans shall be reallocated by causing such fundings and ~~pro rata payment requirements contained elsewhere in this Agreement~~ repayments (which shall not ~~apply~~ be subject to any processing and/or recordation fees) among the ~~transactions effected pursuant~~ Term Loan Lenders (with the Borrower responsible for any costs arising under Section 2.15 resulting from such reallocation and repayments) of Term Loans as necessary such that, after giving effect to ~~the immediately preceding sentence~~such Increased Term Loans, each Term Loan Lender will hold Term Loans based on its Term Loan Commitment Percentage (after giving effect to such Increased Term Loan Commitments).

Appears in 1 contract

Sources: Credit Agreement (Mednax, Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~increase the existing Revolving Credit Commitments of any Class (any such increase, ~~request~~ the “Incremental ~~Commitments in~~ Revolving Credit Commitments”) and/or incur one or more new term loan commitments and/or increase the commitments of any Class of Term Loans (the “Incremental Term Loan Commitments”) by an amount ~~such that~~not to exceed in the aggregate, ~~after giving effect thereto~~at the time of incurrence, the ~~aggregate amount of~~ Incremental ~~Commitments established at or prior to~~ Available Amount (and not less than $5,000,000 individually). (b) Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice~~ Administrative Agent (or such ~~longer or~~ shorter period of time as may be agreed to by the Administrative Agent ~~shall agree~~in its sole discretion)); and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (~~iii~~each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) ~~whether~~ to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans 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 of each notice to any applicable Revolving Credit Lender of any such given Class, the respective interests in such Revolving Credit ▇▇▇▇▇▇’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 ~~and~~ shall become effective as of such Increased Amount Date; provided that: (ivi) (x) subject, solely in the case of ~~any request for~~ Incremental Term ~~Loan Commitments~~Loans, ~~whether such Incremental Term Loan Commitments are commitments~~ to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) Section 1.09(c), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ 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; provided that this clause (iii)(x) may be waived or limited as agreed in the ~~Total Leverage Ratio, determined on a Pro Forma Basis~~ Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (~~assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii~~y) the representations and warranties ~~set forth in Article III~~ of the Borrower and in each other Loan ~~Document~~ Party contained in Article 5 hereof shall be true and correct in all material respects (~~or in all respects, if~~ 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 ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ 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 an Investment in the nature of an acquisition, this clause (i)(y) may be waived or limited as agreed in the Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders to Sections 5.01(a), 5.01(b), 5.02(a), 5.13, 5.17, 5.18, 5.19 (other ~~date~~than the first or second sentence thereof) and 5.20; (ii) the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 3.01); (iii) the Incremental Facilities shall be Guaranteed by the Guarantors (and, for the avoidance of doubt, no Person other than 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 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 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 ~~Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~increase made pursuant thereto. (cg) ~~Incremental Commitments shall be established pursuant to an amendment~~ The terms (an including pricing, “~~Incremental Assumption Agreement”)~~ most favored nations” provisions, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions relating to ~~this Agreement. The terms~~ excess cash flow, asset sale proceeds and condemnation proceeds) and conditions of the Incremental Term Loans ~~shall be determined by the Borrower~~ and ~~the~~ Incremental Term ~~Lenders and~~ Loan Commitments shall be, except as otherwise explicitly set forth herein, as agreed in the Joinder Agreement between the Borrower, the applicable Incremental ~~Assumption Agreement~~Term Loan Lenders providing such Incremental Term Loan Commitments and the Administrative Agent; provided that (i) the ~~final maturity date~~ 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 each Class shall be no earlier than the Latest Maturity ~~Date, (ii)~~ Date at the ~~average life to maturity~~ time of the incurrence of such Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the ~~All-in Yield on such~~ pricing of each Class of Incremental Term Loans ~~exceeds~~ may be subject to “most favored nations” provisions if and to the ~~initial All-~~extent set forth in ~~Yield of~~ the ~~Tranche B Term Loans by more than 50 basis points (the amount of~~ Joinder Agreement for such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans Class and (v) to in the ~~extent the terms~~ case of ~~the~~ Incremental Term ~~Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above)~~Loans, such ~~terms shall be reasonably satisfactory to~~ 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 mandatory prepayments of Term Loans hereunder, as specified in the ~~Administrative Agent. Any~~ applicable Joinder Agreement, and in the case of Incremental Revolving Credit ~~Commitment~~ 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. (h) The terms and provisions of the Incremental Revolving Loans ~~thereunder) shall be implemented as an increase to the Total~~ and Incremental Revolving Credit Commitments ~~and~~ shall be ~~on terms~~ identical to the ~~existing~~ other Revolving Credit Loans of the Class being so increased and the Revolving Credit Commitments ~~(and~~ of the Class being so increased; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving Credit Facility of the Class being so increased, the interest rate on the Revolving Credit Facility of such Class shall be increased to equal such required rate without further consent of the affected Lenders; provided, further, that if the Incremental Revolving Loan Lenders require a commitment fee on the undrawn portion of such Incremental Revolving Loans ~~thereunder)~~and Incremental Revolving Credit Commitments in excess of the commitment fee then applicable to the Revolving Credit Facility of the Class being so increased, the commitment fee on the Revolving Credit Facility of such Class shall be increased to equal such commitment fee without further consent of the affected Lenders. (di) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25,~~ 2.14 (including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to ~~establish the Incremental Term Loan Commitments and~~ enable any Incremental Term Loans ~~as a new Class or tranche of~~ that are intended to be fungible with any other Term Loans ~~and~~ to be fungible with such other ~~technical~~ Term Loans, which shall include any amendments ~~as may be necessary or appropriate in~~ that modify the ~~reasonable opinion~~ aggregate principal amount of scheduled installment payments to the ~~Administrative Agent and~~ extent such amendment does not decrease the ~~Borrower in connection with the establishment of~~ installment payment an existing Term Lender would have received prior to giving effect to any such ~~new Class or tranche, in each case on terms consistent with this Section 2.25~~amendment). (ej) ~~Upon each increase~~ This Section 2.14 shall supersede any provisions in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect 2.13 or Section 10.01 to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 1 contract

Sources: Credit Agreement (Turning Point Brands, Inc.)

Incremental Facilities. ~~(a)~~ i. The Borrower ~~may~~may at any time or from time to time after the Effective Date, by written notice delivered to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) one or more new term loans which may be the ~~amount~~ same Class as any outstanding Class of Term Loans (a “Term Loan Increase”) and/or one or more new Classes of term loans (collectively, with any Term Loan Increase (and including the Tranche B Term Loans and Tranche B-1 Term Loans), the “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Term Loans”), (ii) one or more increases in the ~~date on which~~ amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (~~Revolving Credit Commitment Increase”) or ~~such longer or shorter period as the Administrative Agent shall agree)),~~ (iii) ~~whether such~~ one or more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments”, and together with the Incremental ~~Commitments are~~ Term Loans and the Incremental Revolving Credit ~~Commitments or~~ Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments” (including therein the Tranche B Term Loan Facility and Tranche B-1 Term Loan Facility, and the Tranche B Term Loan Commitments and ~~(iv) in~~ the ~~case of any request for Incremental~~ Tranche B-1 Term Loan Commitments, ~~whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~respectively)); provided that: 1. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent after giving effect to the effectiveness of any Incremental Agreement referred to below, except as set forth in the proviso to clause (b) below, no Event of 91 LPL – Conformed A&R Credit Agreement Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment ~~that~~ Increase or Additional/Replacement Revolving Credit Commitment is made or effected (i) and after giving effect thereto), no ~~Default or~~ Event of Default shall ~~have occurred and~~ exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be ~~continuing immediately prior~~ waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or ~~immediately~~ Section 11.5, which requirement may not be waived by such Incremental Lenders); and 2. after giving effect to the incurrence of such Incremental ~~Commitments~~Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), ~~(ii)~~ the ~~Total Leverage Ratio, determined~~ Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period. ii. Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and following the Effective Date, the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitments ~~have been~~ then outstanding were fully ~~funded~~ drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period, that is no greater than 4.0:1.0 (the amounts under clause (A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with the Free and Clear Incremental Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and without ~~netting~~ regard to whether an Event of Default has occurred and is continuing, to the ~~proceeds~~ extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of 92 LPL – Conformed A&R Credit Agreement such Incremental Term Loans to prepay Term Loans in accordance with the procedures set forth in Section 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided and (iii) the Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof in accordance with Section 1.2(m) (and, absent such election, shall be deemed to have used the Incurrence-Based Incremental Amount). Without limiting the foregoing, all or any portion of the Free and Clear Incremental Amount incurred concurrently with all or any portion of the Incurrence-Based Incremental Amount shall not count as Indebtedness for the purposes of calculating the applicable ratio pursuant to the Incurrence-Based Incremental Amount in accordance with Section 1.2(m). (i) The Incremental Term Loans (I) shall rank pari passu in right of payment and of security with the Tranche B-1 Term Loans, (II) shall not mature earlier than the Tranche B-1 Term Loan Maturity Date, (III) shall not have a shorter Weighted Average Life to Maturity than the Tranche B-1 Term Loan Facility, (IV) shall have an amortization schedule (subject to clause (III) above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided, however, that if the Effective Yield in respect of any Incremental Term Loans that rank pari passu in right of payment and security with the Tranche B-1 Term Loans as of the date of funding thereof and established on or prior to the Tranche B-1 Term Loan Maturity Date exceeds the Effective Yield in respect of the Tranche B-1 Term Loans by more than 0.50%, then the Applicable Margin in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Tranche B-1 Term Loans is equal to the Effective Yield of the Incremental Term Loans minus 0.50%; provided, further, to the extent that any change in the Effective Yield of the Tranche B-1 Term Loans is necessitated by this clause (c)(i) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, the increased Effective Yield in the Tranche B-1 Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the Tranche B-1 Term Loans and (V) may otherwise have terms and conditions different from those of the Tranche B-1 Term Loans; provided that (except with respect to matters contemplated by subclauses (II), (III) and (IV) in above) any differences shall be reasonably satisfactory to the Administrative Agent. 1. The Incremental Revolving Credit Commitment Increase shall be treated the same as the Revolving Credit Commitments (including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility. 2. The Additional/Replacement Revolving Credit Commitments (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (ii) shall not ~~exceed 2.75:1.00~~mature earlier than the Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts and prepayment premiums as determined by the ~~representations~~ Borrower and ~~warranties set forth~~ the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (v) may include provisions relating to swingline 93 LPL – Conformed A&R Credit Agreement loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in ~~Article III~~ connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each ~~other Loan Document~~ case which shall be ~~true~~ specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and ~~correct in all material respects~~ Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (~~or in all respects, if qualified as to materiality~~vi) on may otherwise have terms and as conditions different from those of the ~~date such Incremental Commitments become effective~~ Revolving Credit Facility; provided that (~~or if such representation and warranty relates~~ except with respect to ~~another date~~matters contemplated by clauses (ii), ~~such other date~~(iii), (iv) and (v) above) any differences shall be reasonably satisfactory to the Administrative Agent. iv. Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Term Loan, no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Credit Commitment Increase and no existing Lender with an Revolving Credit Commitment will have an obligation to provide a portion of any Additional/Replacement Revolving Credit Commitment) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) the ~~terms of~~ Administrative Agent shall have consented (not to be unreasonably withheld) to such ~~Incremental Commitments and the~~ Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans ~~thereunder~~ or Commitments, as applicable, to such Lender or Additional Lender; provided further that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, each Swingline Lender and each Letter of Credit Issuer shall ~~comply with~~ have consented (not to be unreasonably withheld) to such Additional ▇▇▇▇▇▇’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments if such consent would be required under Section ~~2.25(c)~~13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. ~~(c)~~ v. Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be ~~established~~ provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Assumption~~ Agreement”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Credit Documents, executed by Holdings, the ~~Borrower~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ The Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, subject to Section 2.14(c), without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be ~~necessary or appropriate~~necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this ~~Section 2.25~~Section. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date” (including the Second Amendment Effective Date, the Fourth Amendment Effective Date and the Fifth Amendment Effective Date)), and the occurrence of any ~~amendments necessary~~ Credit Events pursuant to ~~establish~~ such 94 LPL – Conformed A&R Credit Agreement Incremental Agreement, shall be subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or trancheLoans, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment ~~be prepaid from~~ Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided that the proceeds of ~~additional Revolving~~ any Incremental Term Loans ~~made hereunder so that the Revolving Loans are thereafter held by the~~ incurred, and any Additional/Replacement Revolving Credit ~~Lenders according~~ Commitments provided, in either case as described in the proviso to ~~their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments~~Section 2.14(b), ~~which prepayment~~ shall be ~~accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender~~ used in accordance with ~~Section 2.16. The Administrative Agent and~~ the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceterms thereof.

Appears in 1 contract

Sources: Amendment to Credit Agreement (LPL Financial Holdings Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ Representative may by written notice to the Administrative Agent ~~from~~ elect to request the establishment of one or more increases in Commitments (the “Incremental Commitments”), by an aggregate amount that is an integral multiple of $5,000,000 and not less than $10,000,000 individually (or such lesser amount as may be approved by the Administrative Agent); provided that at no time ~~to time, request Incremental Commitments in an amount such that, after giving effect thereto,~~ shall the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments effected pursuant to this Section, exceed $1,250,000,000. Each such notice shall specify the date (each, an “Incremental Effective Date”) on which the Borrower Representative proposes that the Incremental Commitments shall be effective. The Borrowers may approach any Lender or any other Person (other than a natural person) to provide all or a portion of the Incremental Commitments; provided that any Lender may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment shall become effective as of the applicable Incremental Effective Date; provided that (i) the conditions set forth in Section 4.02 shall be satisfied (with all references in such Section to a Borrowing being deemed to be references to such Incremental Commitments) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer, (ii) the Incremental Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower Representative and the Administrative Agent, (iii) the Administrative Agent, the Swingline Lender and the Issuing Bank shall have consented (not to be unreasonably withheld or delayed) to any New Lender (as defined below) to the extent such consent, if any, would be required under Section 10.04 for an assignment of Loans or Commitments to such Person and (iv) the Borrowers shall make any payments required pursuant to Section 2.15 in connection with the Incremental Commitments, as applicable. (b) On any Incremental Effective Date, subject to the satisfaction of the foregoing terms and conditions, (i) each of the Lenders with existing Commitments shall assign to each Lender with an Incremental Commitment (each, a “New Lender”) and each of the New Lenders shall purchase from each of the Lenders with existing Commitments, at the principal amount thereof, such interests in the Loans outstanding on such Incremental Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Loans will be held by existing Lenders and New Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments, (ii) ~~the Total Leverage Ratio~~each Incremental Commitment shall be deemed for all purposes a Commitment and, ~~determined on~~ each Loan made under an Incremental Commitment (a ~~Pro Forma Basis (assuming that~~ “New Loan”) shall be deemed, for all ~~Incremental Commitments have been fully funded~~ purposes, Loans and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ (iii) ~~the representations and warranties set forth in Article III and in~~ each ~~other Loan Document~~ New Lender shall ~~be true and correct in all material respects (or in all respects, if qualified as~~ become a Lender with respect to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental ~~Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~Commitment and all matters relating thereto. (c) Incremental Commitments ~~shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term~~ and New Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the ~~existing Revolving Credit~~ Commitments (and the ~~Revolving Loans thereunder)~~Loans. (d) ~~In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental~~ Each Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect ~~such~~ technical and corresponding amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.21. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (KKR & Co. L.P.)

Incremental Facilities. (a) ~~The~~ Pursuant to the terms and subject to the conditions hereof, after the Eighth Amendment Effective Date, the Borrower ~~may~~may request, from any Lender or any New Lender, with at least 10 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice to the Administrative Agent, (i) new term loans under one or more new term loan credit facilities to be included in this Agreement (the “New Term Loan”) and/or (ii) increases in the amount of Revolving Commitments (any such new commitments, collectively, the “New Revolving Commitments” and, any loans made thereunder, the “New Revolving Loans”, together with the New Term Loans, the “New Loans”), the proceeds of which, in each case, may be used for general corporate purposes (such increase of the outstanding principal amount of the Loans or Commitments, a “Facility Increase”). (b) The terms of such New Term Loans, the New Revolving Commitments or New Revolving Loans, as the case may be, shall be determined by the Borrower and the applicable Lenders or New Lenders providing such New Loans or New Revolving Commitments; provided, that: (i) such New Term Loans shall (A) have a final maturity no earlier than the Latest Maturity Date and a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of any existing Series of Term Loans; (B) have Applicable Rates and amortization schedules determined by the Borrower and the Lenders or New Lenders with respect thereto; and (C) otherwise be on terms, to the extent not identical to the terms of the initial Term Loans, reasonably satisfactory to the Administrative Agent ~~from time~~ and the Borrower; and (ii) such New Revolving Commitments and New Revolving Loans shall be identical to ~~time~~the Revolving Commitments and the Revolving Loans. (c) In connection with any Facility Increase after the Eighth Amendment Effective Date, ~~request Incremental Commitments~~ such Facility Increase (when aggregated with any outstanding New Loans or New Revolving Commitments) shall be in an aggregate principal amount not in excess of (i) $100,000,000 plus (ii) $200,000,000 which, in the case of this clause (ii), shall be available solely on the Eleventh Amendment Effective Date; provided, that each request for New Loans or New Revolving Commitments shall be for a minimum amount of the lesser of (x) $5,000,000 and (y) the entire amount that may be requested under this Section 2.18(c). (d) The terms of any New Loans shall be established pursuant to an amendment to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each applicable Lender or New Lender providing such New Loans and the Administrative Agent (each such amendment, an “Incremental Amendment”). Each such Incremental Amendment and all other documentation in respect of such New Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower. The Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) of such Incremental Amendment, which shall be promptly notified to the Lenders. Upon the Incremental Effective Date, each applicable Lender or New Lender providing any Incremental Loan shall become a “Lender”, and such Incremental Loan shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower and Administrative Agent shall agree to such procedures, if any, as are necessary to accomplish the purposes of this Section 2.18. (e) No Lender shall be obligated to provide any New Loans or unless it so agrees in its sole discretion. The Administrative Agent may elect or decline to arrange any New Loans in its sole discretion. (f) The repayment (other than in connection with a scheduled repayment or a repayment at maturity) and the prepayment of any New Term Loans shall be made on a pro rata basis with all other outstanding Term Loans and the repayment (other than in connection with a repayment at maturity) and the prepayment of any New Revolving Loans shall be made on a pro rata basis with all other outstanding Revolving Loans; provided, that if the applicable Lenders providing such New Loans so agree, such Lenders may participate on a less than pro rata basis in any repayment or prepayment hereunder. On any Incremental Effective Date, subject to the satisfaction of the terms and conditions set forth in this Section 2.18, (i) each of the existing Revolving Lenders shall assign to each of the New Revolving Lenders, and each of the New Revolving Lenders shall purchase from each of the existing Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the New Revolving Commitments outstanding on such Incremental Effective Date as shall be necessary in order that, after giving effect ~~thereto~~to all such assignments and purchases, the ~~aggregate amount~~ Revolving Commitments will be held by existing Revolving Lenders and New Revolving Lenders ratably after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments. (g) No Incremental ~~Commitments established at or prior to such time does not exceed $100,000,000. Such notice~~ Amendment shall ~~set forth~~ become effective unless all of the following conditions are met: (i) ~~the amount~~ Each of the ~~Incremental Commitments being requested (which shall be~~ conditions precedent set forth in ~~minimum increments~~ Section 4.02 are satisfied as of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such ~~notice~~ Incremental Amendment (~~or such longer or shorter period~~ including the condition that as of the ~~Administrative Agent shall agree)), (iii) whether~~ date of such Incremental ~~Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments~~Amendment, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no ~~Default or Event of Default~~ event shall have occurred and be continuing ~~immediately prior to~~ or ~~immediately after giving effect to~~ would result from the consummation of such Incremental ~~Commitments,~~ Amendment that would constitute a Default or an Event of Default); (ii) each Incremental Amendment shall contain a representation and warranty by the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming~~ Borrower that ~~all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties ~~set forth~~ of (A) the Borrower contained in Article ~~III~~ 3 and (B) each Loan Party contained in each other Loan Document ~~shall be~~ or in any document furnished at any time under or in connection herewith or therewith are true and correct in all material respects (~~or in all respects, if qualified as to materiality~~without duplication of any materiality qualifier contained therein) on and as of the effective date ~~such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms~~ of such Incremental ~~Commitments~~ Amendment, except to the extent that such representations and ~~the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments~~ warranties specifically refer to an earlier date, in which case they shall be ~~established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ true and correct as of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no such earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, date; (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to)~~ Loan Parties shall reaffirm their respective obligations under the ~~Tranche B Term Loans in right of payment and with respect~~ Collateral Documents pursuant to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be an agreement reasonably satisfactory to the Administrative Agent~~. Any~~ ; (iv) if requested by the Administrative Agent, constituent documents of the Loan Parties, resolutions (or equivalent authorization) of each Loan Party’s board of directors (or equivalent body) or shareholders (or equivalent), as applicable, approving such Incremental ~~Revolving Credit Commitment (~~Amendment shall be delivered to the Administrative Agent and an opinion or opinions of counsel reasonably satisfactory to the Administrative Agent as to the enforceability of the Incremental ~~Revolving Loans thereunder~~Amendment, this Agreement as amended thereby and such of the other Loan Documents (if any) ~~shall~~ as may be ~~implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder).~~amended thereby; and (dv) ~~In connection with any Incremental Commitments,~~ the Borrower, the Administrative Agent and each applicable ~~Incremental~~ Lender shall execute and deliver to the Administrative Agent ~~an Incremental Assumption Agreement providing for such Incremental Commitments, and such other~~ any documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested transaction contemplated by ~~the Administrative Agent or the other parties to~~ such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25Amendment. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.)

Incremental Facilities. (a) The Spanish Borrower, Foreign Borrower ~~may~~or the U.S. Borrower, as applicable, may by written notice to the Administrative Agent ~~from~~ at any time after the Closing Date elect to ~~time,~~ request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) prior to the ~~amount of~~ Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (any such increase, the “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Revolving Commitments”), (ii) the establishment of one or more new term loan commitments or an increase to the existing Dollar Tranche B Term Loan Commitments (the “Incremental Dollar Tranche B Term Loan Commitments”) and/or (iii) the establishment of one or more new term loan commitments or an increase to the existing Euro Tranche B Term Loan Commitments (the “Incremental Euro Tranche B Term Loan Commitments”), by an amount not in excess of the Incremental Amount and not less than $25,000,000 (or €25,000,000 with respect to any drawing in Euro) individually (or such lesser amount which shall be approved by the Administrative Agent), and integral multiples of $10,000,000 (or €10,000,000 with respect to any drawing in Euro) in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which ~~such~~ the applicable Borrower proposes that the Incremental Revolving Commitments ~~are requested to become effective (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not be less than 10 Business Days ~~nor more than 60 days~~ after the date on which such notice is delivered to the Administrative Agent, and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom such Borrower proposes any portion of such ~~notice (~~Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such ~~longer or shorter period as~~ allocations; provided, that the Administrative Agent ~~shall agree)), (iii) whether~~ may elect or decline to arrange such Incremental ~~Commitments are Incremental~~ Revolving ~~Credit~~ Commitments or Incremental Term Loan Commitments in its sole discretion and ~~(iv) in~~ any Lender approached to provide all or a portion of the ~~case of any request for~~ Incremental ~~Term Loan Commitments, whether such~~ Revolving Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion) , to provide an Incremental Revolving Commitment or ~~any Additional Lender. (b) It~~ an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall ~~be a condition precedent to the effectiveness~~ become effective as of ~~any Incremental Commitment~~ such Increased Amount Date; provided, that (i1) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; provided, that in the case of Incremental Facilities being used to make a Limited Condition Acquisition, compliance with this clause (ii1) shall be determined as of the ~~Total Leverage Ratio~~LCA Test Date and no Specified Event of Default shall exist at the time of consummation of such Limited Condition Acquisition; (2) both before and after giving effect to the making of any Series of Incremental Term Loans or Incremental Revolving Loans, ~~determined on a Pro Forma Basis (assuming~~ each of the conditions set forth in Section 3.02 shall be satisfied; provided, that ~~all Incremental Commitments have been fully funded and without netting~~ if the proceeds of ~~any~~ such Incremental ~~Loans)~~Term Loan or Incremental Revolving Loan are being used to finance a Limited Condition Acquisition, ~~shall not exceed 2.75:1.00, (iii)~~ then the ~~representations and warranties set forth in Article III and in each other Loan Document~~ Specified Representations shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) and the representations and warranties contained in the agreement relating to the Limited Condition Acquisition as are material to the interests of the Agents and the Lenders shall be true and correct, but only to the extent that a Loan Party, or ~~in all respects~~an Affiliate of a Loan Party, ~~if qualified~~ has the right to terminate its obligations under such agreement (or the right not to consummate the Limited Condition Acquisition under such agreement) as a result of the failure of such representations and warranties to ~~materiality) on~~ be true and correct as of such date (except to the ~~date such Incremental Commitments become effective (or if such representation and warranty relates~~ extent relating to ~~another~~ an earlier date, in which case as of such earlier date); (3) no more than five (5) incremental increases are permitted; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other ~~date~~documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent in connection with any such transaction; (7) the applicable Borrower shall deliver or cause to be delivered the items set forth in Section 5.13(d) within the timeframes set forth therein and which shall be reasonably acceptable to the Collateral Agent and each Lender; and (~~iv)~~ 8) the ~~terms~~ applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement, but at the option of the Borrowers, if permitted by applicable law, any Series of Incremental Term Loans may be fungible with, and constitute part of a Class of existing Term Loans or a prior Series of Incremental Term Loans. (b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the Lenders with Revolving Commitments of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments of the applicable Class, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan of the applicable Class and (iii) 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 applicable 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 Representative’s notice of each Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, as applicable and (z) in the case of each notice to any applicable Lender with Revolving Commitments, the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. (e) The terms and provisions of the Incremental Tranche B Term Loans and Incremental Term Loan Commitments of any Series of Incremental Tranche B Term Loans shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche B Term Loans of the same Class. The terms and provisions of the Incremental Revolving Loans ~~thereunder shall comply with Section 2.25(c). (c) Incremental Commitments~~ shall be ~~established pursuant~~ identical to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ the Revolving Loans of the same Class. In the case of any Incremental Tranche B Term Loans, (i) the Weighted Average Life to Maturity of all Incremental Tranche B Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Tranche B Term Loans (provided, that in calculating the Weighted Average Life to Maturity, the effect of application of prepayments to future amortization payments shall be disregarded), (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the final maturity of the Tranche B Term Loans, and (iii) the yield and all other terms applicable to the Incremental Tranche B Term Loans of each Series shall be determined by the Borrower Representative and the ~~Incremental Term~~ applicable new Lenders and shall be set forth in ~~the~~ each applicable ~~Incremental Assumption~~ Joinder Agreement; ~~provided~~ provided, that ~~(i) the final maturity date of any~~ in connection with Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Tranche B Term Loans, the yield applicable to such Incremental Tranche B Term Loans (~~iii~~after giving effect to all rate floors and all fees or original issue discount payable with respect to such Incremental Tranche B Term Loans (and excluding for the avoidance of doubt, any underwriting or similar fees)), as reasonably determined by the Administrative Agent, shall not be greater than the applicable yield (including the Applicable Margin and rate floor and any original issue discount or fees payable in connection with the initial issuance of Tranche B Term Loans of the same currency (but excluding for the avoidance of doubt any underwriting or similar fees)) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to such Tranche B Term Loans, plus 0.50% per annum unless (A) the ~~Incremental~~ interest rate with respect to such Tranche B Term Loans ~~will rank pari passu~~ of the same currency is increased so as to cause the then applicable interest rate under this Agreement on such Tranche B Term Loans to be not more than 0.50% less than the yield then applicable to the Incremental Tranche B Term Loans (after giving effect to all rate floors and all fees or original issue discount payable with respect to such Incremental Tranche B Term Loans) and (~~or junior to~~B) the interest rate with respect to Tranche B Term Loans in ~~right of payment~~ any other currency and ~~with respect to security and the borrower and guarantors of the Incremental Term~~ Revolving Loans ~~shall be the same as the Borrower and Guarantors with respect~~ is increased by an amount equal to the ~~Term Loans, (iv) if~~ amount of any increase in the ~~All-in Yield on~~ interest rate for such ~~Incremental Term Loans exceeds the initial All-in Yield of the~~ Tranche B Term Loans ~~by more than 50 basis points~~ pursuant to clause (~~the amount of such excess above 50 basis points being referred to herein as~~ A) (this proviso the “~~Yield Differential~~MFN Provision”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving ~~Credit Commitment (and the Incremental Revolving~~ Loans ~~thereunder) shall~~ will be ~~implemented~~ documented solely as an increase to the ~~Total~~ Revolving ~~Credit~~ Commitments ~~and shall be on terms identical~~ of the same Class without any change in terms, other than any change that is more favorable to the ~~existing~~ Revolving ~~Credit Commitments (~~Lenders and ~~the~~ applies equally to all Revolving Loans ~~thereunder). (d) In connection with any Incremental Commitments,~~ and Revolving Commitments of the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lendersame Class. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any Lender other than the applicable Incremental Revolving Loan Lender or Incremental Term Loan Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent ~~and the Borrower,~~ to effect the provisions of this Section 2.25, including without limitation at the option of the applicable Borrower, the applicable Borrower may, but shall not be required to, increase the Applicable Margin or amortization payments relating to any ~~amendments necessary~~ existing Term Loan to ~~establish~~ bring such Applicable Margin and/or amortization payments in line with the relevant Incremental Dollar Tranche B Term Loan Commitments ~~and~~ or Incremental Euro Tranche B Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection Loan Commitments to achieve fungibility with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceTerm Loan.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Grifols SA)

Incremental Facilities. (a) ~~The~~ Any Borrower ~~may,~~ (including any Additional Borrower) or any other Guarantor may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Sterling. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrowers shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) of the definition of “Maximum Incremental Facilities Amount”. The Borrowers may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. Subject to Section 1.12 in each case, such New Loan Commitments shall be subject to (i) no Event of Default under Section 11.1 or Section 11.5 (with respect to the Borrowers) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of the Borrowers and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Revolving Credit Loans for all purposes of this Agreement. Notwithstanding anything else to the contrary in this Section 2.14 or otherwise in this Agreement, any Incremental Loans may be incurred by any Borrower(s) and/or any other Credit Party at the option of the Borrowers. (b) Incremental Revolving Credit Commitments shall be subject to the satisfaction of the following terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from ~~time to time~~each of the Lenders with Revolving Credit Commitments of such Class, ~~request Incremental Commitments~~ at the principal amount thereof, such interests in ~~an amount~~ the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect ~~thereto~~to all such assignments and purchases, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date Revolving Credit Loans of such ~~notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental~~ Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments ~~or Incremental Term Loan Commitments and (iv) in the case~~ of ~~any request for Incremental Term Loan Commitments, whether~~ such ~~Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding~~ Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the ~~Total Leverage Ratio~~New Revolving Loan Lenders, ~~determined on~~ the “Incremental Revolving Loan Lenders”) shall become a ~~Pro Forma Basis (assuming~~ Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that ~~all Incremental Commitments have been fully funded and without netting~~ the ~~proceeds of any Incremental Loans)~~Administrative Agent, ~~shall not exceed 2.75:1.00, (iii)~~ the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments Swingline Lender and the ~~Incremental Term Loans~~ Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans ~~thereunder shall comply with Section 2.25(c)~~or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) ~~Incremental~~ New Term Loan Commitments of any Series shall be ~~established pursuant~~ subject to ~~an amendment~~ the satisfaction of the following terms and conditions, (an i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrowers (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental ~~Assumption Agreement~~Loans”) ~~relating~~ in an amount equal to ~~this Agreement.~~ its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the ~~Incremental~~ New Term Loans and New Term Loan Commitments of any Series shall be ~~determined by the Borrower~~ on terms and ~~the Incremental Term Lenders and~~ documentation set forth in the ~~applicable Incremental Assumption Agreement~~Joinder Agreement as determined by the Borrowers; provided that (i) the ~~final maturity date~~ applicable New Term Loan Maturity Date of ~~any Incremental Term Loans~~ each Series shall be no earlier than the ~~Latest~~ Tranche B-6-7 Term Loan Maturity Date, ; (ii) the weighted average life to maturity of ~~the Incremental~~ all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Tranche B-6-7 Term Loans (provided that the foregoing clauses (i) and (ii) shall not apply to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in New Term Loans as selected by the Borrowers, (B) customary bridge loans (including 364-day bridge loans); provided, that either (x) the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than the Tranche B-6-7 Term Loan Maturity Date or (y) any ~~then-outstanding Class~~ loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of ~~Term Loans~~clauses (i) and (ii), (C) customary term A loans and (D) Indebtedness issued subject to customary escrow arrangements that have redemption requirements related to such escrow release (so long as subject to such escrow)), (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment~~ pricing, interest rate margins, discounts, premiums, rate floors, fees, and ~~with respect~~ amortization schedule applicable to ~~security and the borrower and guarantors of the Incremental~~ any New Term Loans shall be determined by the ~~same as~~ Borrowers and the ~~Borrower and Guarantors~~ Lenders thereunder; provided, that except with respect to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) of New Term ~~Loans~~Loans (as selected by the Borrowers), (ivB) customary term A loans, (C) customary bridge loans (including 364-day bridge loans) (provided that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (iii)) and (D) New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, with respect to any such non-excepted New Term Loans in the form of a broadly syndicated U.S. dollar denominated term “B” loan that is secured on a pari passu basis with the Tranche B-5 Term Loans incurred pursuant to clause (i)(a) of the definition of “Maximum Incremental Facilities Amount” that matures earlier than one year after the Tranche B-5 Term Loan Maturity Date, only during the period commencing on the Amendment No. 6 Effective Date and ending on the date that is 12 months after the Amendment No. 6 Effective Date, if the ~~All-~~Applicable Margin for SOFR Loans in ~~Yield on~~ respect of such ~~Incremental~~ New Term Loans exceeds the ~~initial All-~~Applicable Margin for SOFR Loans in ~~Yield~~ respect of the then existing Tranche B B-5 Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.75%, ~~then~~ the Applicable Margin for SOFR Loans in respect of the then existing Tranche B B-5 Term Loans shall ~~automatically~~ be ~~increased by~~ adjusted so that the ~~Yield Differential, effective upon~~ Applicable Margin in respect of the ~~making~~ then existing Tranche B-5 Term Loans that are SOFR Loans is equal to the Applicable Margin for SOFR Loans in respect of such ~~Incremental~~ New Term Loans ~~and~~ minus 0.75% (vthe “Tranche B-5 MFN Protection”), (iv) to the extent such terms and documentation are not consistent with the ~~terms of the Incremental~~ then existing Tranche B-5 Term Loans ~~are inconsistent with the terms set forth herein~~ (except ~~as set forth in~~ to the extent permitted by clause (i), (ii) ~~through~~ or (iviii) above), ~~such~~ they shall either (x) reflect market terms ~~shall~~ and conditions (as determined by the Borrowers in good faith) at the time of incurrence or issuance of New Term Loans (or the obtaining of a commitment with respect thereto) or (y) be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment~~ Agent (~~and~~ it being understood that, (1) to the ~~Incremental Revolving Loans thereunder)~~ extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be ~~implemented as an increase~~ required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the then-Latest Term Loan Maturity Date), (v) any New Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 5.1 and (B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such New Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 5.2, (vi) New Term Loans may not be guaranteed by any Person which is not a Credit Party and (vii) if secured, any New Term Loans may not be secured by assets that do not constitute Collateral. For the avoidance of doubt, all parties to this Agreement hereby agree that the proviso to clause (iii) of this paragraph (d) does not apply with respect to any Tranche B-2 Term Loans and/or Tranche B-4 Term Loans (all of which such “MFN” protections have expired prior to the ~~Total~~ Amendment No. 6 Effective Date) and/or any Tranche B-6 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed) and/or any Tranche B-7 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be ~~on terms~~ identical to the ~~existing~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and of security with the Revolving Credit Loans and the Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans ~~thereunder~~with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Section 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrowers and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the remaining weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (dix) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent ~~reasonably requested~~ that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the ~~other parties to~~ Lenders if such ~~Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to~~ financial maintenance covenant is also added for the ~~effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent~~ benefit of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term corresponding Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in remaining outstanding ~~Letters of Credit such that,~~ after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.th

Appears in 1 contract

Sources: Credit Agreement (GoDaddy Inc.)

Incremental Facilities. (a) ~~The~~ So long as no Event of Default under subsection 8.1(a) or (f) exists or would arise therefrom, the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the 2021 Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Existing Tranche of Existing Revolving Commitments (the “Supplemental Revolving Commitments”), (iv) to request new commitments under one or more new revolving facilities to be included in ~~an amount such~~ this Agreement (the “Incremental Revolving Commitments”), and/or (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, ~~after giving effect thereto,~~ (i) the aggregate amount of Incremental Commitments ~~established~~ permitted pursuant to this subsection 2.9 shall not exceed, at ~~or prior~~ the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such ~~time does not exceed $100,000,000. Such notice shall set forth (i) the~~ Indebtedness), an amount ~~of the Incremental Commitments being requested (which shall~~ that could then be Incurred under this Agreement in ~~minimum increments of $500,000 and a minimum amount of $5,000,000~~compliance with subsection 7.1(b)(i), (ii) if any portion of an Incremental Commitment is to be Incurred in reliance on the ~~date on which such~~ Ratio Incremental ~~Commitments are requested~~ Facility, the Borrower shall have delivered a certificate to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative ~~Agent shall agree))~~Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) ~~whether~~ if any portion of an Incremental Commitment is to be Incurred in reliance on clause (ii) or (iii) of the definition of “Maximum Incremental Facilities Amount”, 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 ~~Commitments are~~ Commitment. Any Loans made in respect of any such Incremental ~~Revolving Credit Commitments or Incremental~~ Commitment (other than Supplemental Term Loan Commitments and ~~(iv~~Supplemental Revolving Commitments) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of shall be made by creating a new ~~Class~~Tranche. ~~The Borrower may seek~~ Each Incremental ~~Commitments from existing Lenders (each of which~~ Commitment made available pursuant to this subsection 2.9 shall be ~~entitled~~ in a minimum aggregate amount of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to ~~agree or decline to participate~~ by the Administrative Agent in its ~~sole~~ reasonable discretion~~) or any Additional Lender~~). (b) It Each request from the Borrower pursuant to this subsection 2.9 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental [[59972986453734]] Commitments (or any portion thereof) may be ~~a condition precedent to~~ made by any existing Lender or by any other bank or financial institution (any such other bank or financial institution, an “Additional Incremental Lender”, and the ~~effectiveness of~~ Additional Incremental Lenders together with any ~~Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such~~ existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (iiin the case of a Supplemental Revolving Commitment) the ~~Total Leverage Ratio, determined on a Pro Forma Basis~~ consent of the Swing Line Lender or any Issuing Bank (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each ~~other Loan Document~~ case, such consent not to be unreasonably withheld, delayed or conditioned) shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)required. (c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Revolving Commitments to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O‑1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit O‑2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. (d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall ~~be established~~ become commitments under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Commitment Amendment”) ~~relating~~ to this ~~Agreement~~Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Incremental Lender. ~~The terms~~ Notwithstanding anything to the contrary herein or in any other Loan Document, an Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, (x) to effectuate the provisions of this subsection 2.9 and/or (y) so long as such amendments are not materially adverse to the other Lenders, to maintain the fungibility of any such Incremental Term Loans with any Tranche of then outstanding Term Loans; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be, at the Borrower’s option, secured on an equal and ratable basis or a junior basis by the same Collateral securing the Senior Credit Facility Obligations (so long as any such Incremental Commitments (and related Obligations) are subject to an Intercreditor Agreement) or be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank on an equal and ratable basis in right of payment with or (at the Borrower’s option) junior in right of payment to the Senior Credit Facility Obligations and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Senior Credit Facility Obligations and (II) so long as any Initial Term Loans are outstanding, any mandatory prepayment from the Net Available Cash of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in respect of such acquisition) or Recovery Events or from Excess Cash Flow, to the extent the Net Available Cash of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans pursuant to subsection 3.4(c) or (d), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with subsection 10.1(d)(v)); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date of any Incremental Revolving Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the Initial Revolving Maturity Date; (iv) [[59972986453734]] the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term B Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term B Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for (x) customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term B Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term B Loans, as applicable and (y) Customary Term A Loans); (v) the interest rate margins and (subject to clause (iv) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the ~~Incremental Term Lenders and set forth in the~~ applicable Incremental ~~Assumption Agreement~~Lenders; provided that in the event that the applicable interest rate margins for any term loans (iother than Customary Term A Loans) made prior to the ~~final maturity~~ date of that is 12six months after the 20212024 Amendment Effective Date that are secured on an equal and ratable basis by the same Collateral securing the Senior Credit Facility Obligations that are Incurred by the Borrower under any Incremental Term ~~Loans shall be no earlier~~ Loan Commitment or under subsection 7.1(b)(i)(B) other than under an Incremental Term Loan Commitment are, in either case, higher than the ~~Latest Maturity Date, (ii)~~ applicable interest rate margin for the ~~average life to maturity of the Incremental~~ Initial Term ~~Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche~~ B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis ~~points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~points, then the Applicable Margin for the ~~Tranche~~ Initial Term B Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term B Loans is equal to the applicable interest rate margins for such Incremental Term Loans or such other term loans, as applicable, minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Initial Term B Loans and the Incremental Term Loans or such other term loans, as applicable, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall ~~automatically~~ be ~~increased~~ deemed to constitute like amounts of OID) payable by the ~~Yield Differential~~Borrower to the Lenders under the Initial Term B Loans or any Incremental Term Loan or other term loan, as applicable, in the initial syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity) (provided that, if the Initial Term B Loans are issued in a manner such that all Initial Term B Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term B Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term B Loans shall be determined on a weighted average basis); (B) any arrangement, structuring, commitment, amendment or other fees payable in connection with the Incremental Term Loans or such other term loans, as applicable, that are not shared with all Incremental Lenders providing such Incremental Term Loans or all term loan lenders providing such other term loans, as applicable, shall be excluded; (C) any amendments to the Applicable Margin on the Initial Term B Loans that became effective ~~upon~~ subsequent to the ~~making~~ 20212024 Amendment Effective Date but prior to the time of such Incremental Term B Loans or other term loans, as applicable, shall also be included in such calculations and (vD) ~~to the extent the terms of~~ if the Incremental Term Loans or such other term loans, as applicable, include an interest rate floor greater than the interest rate floor applicable to the Initial Term B Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term B Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term B Loans shall be increased by such amount; (vi) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders, Required Revolving Lenders, Required Term A Lenders, Required Term A/Revolving Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Obligations,” “Disqualified Stock,” and “Refinancing Indebtedness”, in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Initial Term A Loan Maturity Date or the Initial Term B Loan Maturity Date, as applicable, and remaining weighted average life to maturity of the Initial Term A Loans or Initial Term B Loans, as applicable, to the extended maturity date and the remaining weighted average life to maturity of [[59972986453734]] such Incremental Term Loans, as applicable and (4) for the amendment of clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Incremental Term Loans; and (vii) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are ~~inconsistent with~~ not consistent with, (x) in the case of “term A” Incremental Term Loans, the terms ~~set forth herein~~ and documentation governing the Initial Term A Loans, (y) in the case of “term B” Incremental Term Loans, the terms and documentation governing the Initial Term B Loans or (z) in the case of Incremental Revolving Commitments, the terms and documentation governing the Initial Revolving Commitments (except ~~as set forth in~~ to the extent permitted by clause (~~i) through~~ iii), (iv), (v) or (vi) above), ~~such terms~~ they shall be reasonably satisfactory to the Borrower and the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Assumption Agreement~~Commitment Amendment. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion Each of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such parties hereto hereby agrees that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of ~~such~~ any Incremental ~~Revolving Credit~~ Commitment Amendment, this Agreement and any other Loan Document shall be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect deemed amended to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply extent (but only to the ~~transactions effected pursuant~~ extent) necessary to reflect the ~~immediately preceding sentence~~existence and terms of the Incremental Commitments evidenced thereby.

Appears in 1 contract

Sources: Credit Agreement (Frontdoor, Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ Representative may by written notice to the Administrative Agent ~~from time~~ (each, an “Incremental Facility Request”) elect to ~~time~~request the establishment of one or more new term loan commitments (each, ~~request~~ an “Incremental ~~Commitments in an amount such that, after giving effect thereto~~Term Loan Commitment” and the term loans thereunder, the ~~aggregate amount of~~ “Incremental ~~Commitments established at or prior~~ Term Loans”; each Incremental Term Loan Commitment is sometimes referred to ~~such time does not exceed $100,000,000. Such notice shall set forth~~ herein individually as an “Incremental Facility” and collectively as the “Incremental Facilities”) (i) by an aggregate principal amount not in excess of the Incremental Cap and (ii) in the amount of not less than $5,000,000 individually, and integral multiples of $1,000,000 in excess of that amount. The Borrower Representative may elect to classify by prior written notice to the Administrative Agent, at the time of the incurrence thereof, whether such Incremental Term Loans have been incurred (in whole or in part) first under clause (A) of the definition of “Incremental Cap” or clause (B) of the definition of “Incremental Cap” in their sole discretion. If both the Fixed Incremental Amount and amounts pursuant to clause (B) of the definition of “Incremental Cap” are available and the Borrower Representative does not make such an election, the Borrower Representative will have been deemed to first have utilized amounts available pursuant to clause (B) of the definition of “Incremental Cap”. (b) Each Incremental Facility Request shall specify the date (each, an “Incremental Facility Date”) on which the Borrower Representative proposes that the Incremental ~~Commitments being requested (~~Facility shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than five (ii5) Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative ~~Agent shall agree))~~Agent; provided that any Lender approached to provide all or a portion of the Incremental Facility may elect or decline, (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) , to provide all or any ~~Additional Lender~~portion of such Incremental Facility. (bc) It Each Incremental Facility shall become effective as of the applicable Incremental Facility Date; provided that after giving effect to such Incremental Facility and the loans to be ~~a condition precedent to~~ made thereunder and the ~~effectiveness~~ application of ~~any Incremental Commitment that~~ the proceeds therefrom, (i) no ~~Default or~~ Event of Default shall be continuing on such Incremental Facility Date; provided that if the proceeds of the relevant Incremental Facility will be applied to finance Permitted Acquisitions or other acquisitions constituting Investments not prohibited under the Loan Documents, such condition will be that no event of default shall have occurred and be continuing ~~immediately prior to~~ at the time the definitive documentation evidencing such acquisition or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), investment was executed or shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.result therefrom,

Appears in 1 contract

Sources: First Lien Credit and Guaranty Agreement

Incremental Facilities. ~~(a)~~ The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of one or more (x) additional term loans, ~~request~~ which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) or a separate Class of Term C Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments ~~in an amount such that, after giving effect~~ (the commitments thereto, the ~~aggregate amount~~ “New Revolving Credit Commitments”) or a separate Class of ~~Incremental~~ Revolving Credit Commitments ~~established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (i) the ~~amount of~~ commitments thereto, the ~~Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~“Additional Revolving Credit Commitments” and, ~~(ii)~~ together with the ~~date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ New Revolving Credit Commitments, the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are~~ “Incremental Revolving Credit ~~Commitments or~~ Commitments”; together with the Incremental Term Loan Commitments and the Incremental Term C Loan Commitments, the “Incremental Loan Commitments”), by an aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the ~~case~~ Maximum Incremental Facilities Amount at the time of ~~any request for~~ incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental ~~Term Loan Commitments~~Facilities Amount at such time). Each such notice shall specify the date (each, ~~whether such~~ an “Increased Amount Date”) on which the Borrower proposes that the Incremental ~~Term~~ Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~shall be effective. The Borrower may ~~seek~~ approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments ~~from existing Lenders (each of which shall be entitled to agree~~ may elect or ~~decline to participate~~ decline, in its sole discretion~~) or~~ , to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any ~~Additional Lender. (b) It shall be a condition precedent~~ existing Lender to ~~the effectiveness of~~ provide any Incremental ~~Commitment that~~ Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing~~ exist on such Increased Amount Date immediately ~~prior to~~ before or immediately after giving effect to such Incremental ~~Commitments~~Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ in connection with any incurrence of ~~any~~ Incremental Loans), or establishment of Incremental Loan Commitments, on an Increased Amount Date, there shall ~~not exceed 2.75:1.00, (iii)~~ be no requirement for the Borrower to bring down the representations and warranties ~~set forth~~ under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, in ~~Article III and in each~~ the case of Incremental Loans or Incremental Loan Commitments used to finance a Permitted Acquisition or other ~~Loan Document~~ acquisition constituting a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition) shall be required to be true and correct in all material respects ~~(or in all respects,~~ if ~~qualified as to materiality) on and as~~ requested by the Persons holding more than 50% of the ~~date such~~ applicable Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term~~ Loans or Incremental ~~Revolving Loans thereunder shall comply with Section 2.25(c~~Loan Commitments). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ Loan Commitments shall be ~~the same as~~ effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment (~~, and ~~the Incremental Revolving Loans thereunder)~~ each of which shall be ~~implemented as an increase to~~ recorded in the ~~Total Revolving Credit Commitments~~ Register and shall be ~~on terms identical~~ subject to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions requirements set forth in Section ~~4.02~~5.4(e), all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the ~~establishment of such new Class or tranche~~Incremental Loan Commitments, ~~in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit~~ as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section ~~‎2.25~~2.14(a). For all purposes of this Agreement, ~~each Revolving Credit Lender with~~ (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a ~~Revolving Credit Commitment immediately prior~~ separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such ~~increase will automatically and without further act~~ increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be ~~deemed~~ designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to ~~have assigned to each Incremental Revolving Credit Lender in respect of~~ such increase, and ~~each such~~ (c) any Incremental Revolving Credit ~~Lender will automatically and without further act~~ Commitments made on an Increased Amount Date shall be ~~deemed to have assumed~~designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a ~~portion~~ part of ~~such~~ the series of existing Revolving Credit ~~Lender’s participations hereunder in outstanding Letters~~ Commitments subject to such increase (such new or existing series of ~~Credit such that~~Term Loans, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Term C Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in or Revolving Credit Commitments, each, a “Series”), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)

Incremental Facilities. (a) The Borrower may, at any time but in any event not more than once in any calendar year prior to the Revolving Credit Commitment Termination Date by ~~written~~ notice to the ~~Administrative Agent from time to time~~Agent, request ~~Incremental Commitments in an amount such that, after giving effect thereto,~~ that the aggregate amount of the Revolving Credit Commitments be increased (each such facility increase being an "Incremental ~~Commitments established~~ 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 or least 60 days prior to the scheduled Revolving Credit Commitment Termination Date then in effect in the case of an Incremental Revolving Credit Facility or the Stated Maturity Date then in effect in the case of an Incremental Term Facility (such date for each such Incremental Facility, the "Increase Date") as specified in the related notice to the Agent; provided, however that (i) in no event shall the aggregate amount of any Incremental Facility at any time ~~does not~~ exceed $~~100,000,000~~500,000,000 and (ii) on the related Increase Date, the applicable conditions set forth in Article III shall be satisfied. ~~Such~~ Notwithstanding any other provision of this Agreement (including, without limitation, Section 8.01), this Agreement may be amended by the Agent and the Borrower, if necessary, to provide for terms applicable to each Incremental Facility consistent with the terms hereof. (b) The Agent shall promptly notify Lenders and, to the extent selected by the Agent in consultation with the Borrower, one or more Eligible Assignees (each an "Invited Lender") of a request by the Borrower for Incremental Facility, which notice shall ~~set forth~~ include (i) the proposed amount of ~~the~~ such requested Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~Facility, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), proposed Increase Date and (iii) ~~whether such~~ the date by which Invited Lenders wishing to participate in the Incremental ~~Commitments are Incremental Revolving Credit~~ Facility must commit to an increase in the amount of their respective Commitments or ~~Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether~~ to fund such Incremental Term ~~Loan Commitments are commitments~~ Facility (the "Commitment Date"). Each Invited Lender that is willing to ~~make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek~~ participate in such requested Incremental ~~Commitments from existing Lenders~~ Facility (each ~~of which shall be entitled to agree or decline to participate~~ an "Increasing Lender") shall, in its sole discretion) , give written notice to the Agent on or ~~any Additional Lender. (b) It~~ prior to the 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 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 ~~a condition precedent~~ 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 effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respectsamount, if ~~qualified as~~ any, by which the Increasing Lenders are willing to ~~materiality) on and as of the date such~~ participate in an Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)Facility. (c) 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 Commitments of each Increasing Lender for such Incremental Facility shall be ~~established~~ so increased by such amount (or by the amount allocated to such Lender pursuant to ~~an amendment~~ the last sentence of Section 2.18(b)) as of such Increase Date; provided, however, that the Agent shall have received on or before such Increase Date the following, each dated such date: (~~an “Incremental Assumption Agreement”~~i) ~~relating to this Agreement. The terms~~ (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 ~~Term Loans shall~~ Facility (and the amount to be ~~determined by~~ borrowed hereunder after giving effect to any Incremental Facility) and (B) an opinion of counsel for the Borrower (which may be in-house counsel), in substantially the form of Exhibit D-2 hereto; (ii) an assumption agreement from each Assuming Lender, if any, in form and substance reasonably satisfactory to the Borrower and the ~~Incremental Term Lenders and set forth in the applicable Incremental~~ Agent (each an "Assumption Agreement"), duly executed by such Assuming Lender, the Agent and the Borrower; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, and (iii) ~~the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right~~ confirmation from each Increasing Lender of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of its participation in such Incremental ~~Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth~~ Facility in ~~clause (i) through (iv) above), such terms shall be~~ a writing reasonably satisfactory to the ~~Administrative~~ Borrower and the Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental CommitmentsOn each Increase Date, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment upon fulfillment of ~~each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with~~ the conditions set forth in the immediately preceding sentence of this Section ~~4.02~~2.18(c), ~~all to~~ the ~~extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative~~ Agent shall ~~promptly~~ notify ~~each Lender as to~~ the ~~effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may~~Lenders (including, without ~~consent of any other~~ limitation, each Assuming Lender~~, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent~~ ) and the Borrower, ~~to effect~~ on or before 1:00 P.M. (New York City time), by telecopier, of the ~~provisions~~ occurrence of ~~this Section 2.25, including any amendments necessary to establish~~ the Incremental ~~Term Loan Commitments~~ Facility to be effected on such Increase Date and ~~Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate~~ shall record in the ~~reasonable opinion of~~ Register the ~~Administrative Agent and the Borrower in connection~~ relevant information with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned respect to each ~~Incremental Revolving Credit~~ Increasing Lender ~~in respect of such increase,~~ and each Assuming Lender on such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencedate.

Appears in 1 contract

Sources: Credit Agreement (Tribune Co)

Incremental Facilities. (a) ~~The Borrower may~~(i) After the Restatement Effective Date and before the Term Loan Maturity Date (with respect to Term Loans) and the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative ~~Agent from time~~ Agent, may request (x) the establishment of (x) one or more additional tranches of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments” and,; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to ~~time, request~~ the Maximum Incremental ~~Commitments in an amount such that,~~ Facilities Amount) and (y) after giving effect ~~thereto~~to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments ~~established at or prior to such time does~~ shall not exceed $~~100,000,000. Such notice shall set forth (i)~~ 400,000,000785,000,000 plus the amount of the Term Loans repaid with the proceeds of (1) Senior Unsecured 2019 Notes or (2) any Incremental Term Loans; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new ClassAgent. The Borrower may ~~seek~~ approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments ~~from existing Lenders (each~~ other than a Lender, an affiliate of ~~which~~ a Lender or an Approved Fund, shall be ~~entitled~~ reasonably acceptable to ~~agree~~ the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or ~~decline to participate in its sole discretion) or any Additional Lender~~delayed). (b) It In each case, such Incremental Commitments shall ~~be a condition precedent to~~ become effective as of the ~~effectiveness of any Incremental Commitment that~~ applicable Increased Amount Date, provided that (i) except for any Incremental Loan Commitment in connection with the DTA Acquisition, no Default or Event of Default shall have occurred and be continuing ~~immediately prior to~~ on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Commitments, , (ii) except for any Incremental Loan Commitment in connection with the ~~Total Leverage Ratio~~DTA Acquisition or the Avis Europe Acquisition, ~~determined on a Pro Forma Basis (assuming that all~~ the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments ~~have been fully funded and without netting~~ (provided, in the ~~proceeds~~ case of the Incremental Synthetic Facility, not giving effect to any ~~Incremental Loans~~deemed usage thereof)~~, shall not exceed 2.75:1.00,~~ , (iii) the ~~representations and warranties set forth in Article III and in each~~ weighted average life to maturity of any Incremental Term Loan (other ~~Loan Document~~ than any Incremental Tranche A Term Loan) shall be ~~true and correct in all material respects (~~greater than or ~~in all respects, if qualified as~~ equal to ~~materiality) on and as~~ the then-remaining weighted average life to maturity of the ~~date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and~~ Term Loans, (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms maturity date of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans Synthetic L/C Facility shall be no earlier than the ~~Latest~~ Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after 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 but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of theirsuch 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 the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of theirsuch Revolving Commitments, (vi) except for any Incremental Tranche A Term Loans, if the final maturity date of suchany Incremental Term Loans is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (~~ii) the average life~~ after giving effect to ~~maturity~~ OID or upfront fees paid to all of the Incremental Term ~~Loans shall be no shorter than the remaining average life~~ Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to ~~maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with~~ one or more arrangers (or ~~junior to~~their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the ~~Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ manner set forth above)) shall ~~be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans~~ not exceed by more than 50 basis points the sum of (~~the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then~~ x) the Applicable Margin for the Term Loans (other than the Incremental Tranche B A Term Loans) that is in effect on the Increased Amount Date, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans (other than the Incremental Tranche A Term Loans), which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall ~~automatically~~ be increased by so that the ~~Yield Differential, effective upon the making~~ interest rate margin in respect of such Incremental Term ~~Loans and~~ Loan (v) giving effect to ~~the extent the terms~~ any OID issued or such upfront fees paid to all of the Incremental Term ~~Loans are inconsistent with the terms~~ Loan Lenders in connection therewith as set forth ~~herein~~ above) is no greater than the sum of (~~except~~ x) the Applicable Margin for the Term Loans, (y) the (other than the Incremental Tranche A Term Loans) that is in effect on the Increased Amount Date, (y) the OID or upfront fees paid to all of the Lenders in respect of their Term Loans (other than the Incremental Tranche A Term Loans) and (z) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇) if the final maturity date of suchany Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (~~i) through (iv) above~~vii), ~~such terms~~ and (viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably ~~satisfactory~~ acceptable to the Administrative ~~Agent~~Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C 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, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. (c) On any Increased Amount Date on which Incremental Revolving ~~Credit~~ Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (ax) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (by) 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 (cz) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans ~~thereunder)~~ and Incremental Revolving Commitments shall be ~~implemented as an increase to the Total Revolving Credit Commitments and shall be on terms~~ substantially identical to the ~~existing~~ Revolving ~~Credit Commitments (~~Loans and the Revolving ~~Loans thereunder)~~Commitments of the Revolving Facility. (d) ~~In connection with~~ On any Increased Amount Date on which any Incremental ~~Commitments~~Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~Borrower~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~the Administrative Agent~~ and (ii) each ~~applicable~~ Incremental Synthetic L/C Lender shall ~~execute and deliver~~ become a Lender hereunder with respect to the ~~Administrative Agent an~~ Incremental ~~Assumption Agreement providing for such Incremental Commitments,~~ Synthetic L/C Commitment and ~~such other documentation as the Administrative Agent shall reasonably specify to evidence~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25~~2.23. Notwithstanding anything in this Agreement to the contrary, ~~including any amendments necessary~~ (i) the references to ~~establish~~ the ~~Incremental Term Loan Commitments and Incremental~~ Term Loans ~~as a new Class or tranche of~~ in this Section 2.23 shall be deemed to include the Replacement Term Loans and ~~such other technical amendments as may be necessary~~ (ii) the references to the Revolving Commitments or ~~appropriate~~ the Revolving Loans in ~~the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with~~ this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act 2.23 shall be deemed to ~~have assigned to each Incremental~~ include the Extended Revolving ~~Credit Lender in respect of such increase~~Commitments or the Extended Revolving Loans, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceas applicable.

Appears in 1 contract

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

Incremental Facilities. (a) ~~The Borrower may~~On one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, during the Availability Period, the Borrower may request the establishment of Incremental Commitments and/or the establishment of Additional Commitments (each an “Incremental Facility”); provided in ~~an amount such that, after giving effect thereto,~~ each case that the aggregate amount of all the Incremental Commitments and/or Additional Commitments established ~~at or prior to such time does~~ hereunder shall not exceed $~~100,000,000~~120,000,000 (the “Incremental 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 are permanently reduced in accordance with Section 2.08 by an amount equal to the aggregate amount of Additional Commitments so provided. ~~Such~~ Each such notice shall ~~set forth~~ 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 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, (B) the amount of the Incremental Commitments or Additional Commitments, as applicable, being requested (~~which shall be~~ it being agreed that (x) any Lender approached to provide any Incremental Commitment or Additional Commitment may elect or decline, in ~~minimum increments of $500,000 and a minimum amount of $5,000,000)~~its sole discretion, ~~(ii) the date on which~~ to provide such Incremental ~~Commitments are requested~~ Commitment or Additional Commitment and (y) any Person that the Borrower proposes to become ~~effective (which shall~~ an Incremental Lender or Additional Lender, if such Person is not then a Lender, must be ~~less than 10 Business Days nor more than 60 days after the date of such notice (~~an Eligible Assignee, a Purchasing Debt Affiliate or ~~such longer or shorter period as~~ a non-Debt Fund Affiliate and must be reasonably acceptable to the Administrative Agent ~~shall agree))~~and, ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv)~~ in the case of any ~~request for~~ proposed Incremental ~~Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class~~ Lender or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any 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) ~~It shall be a condition precedent to the effectiveness~~ The material terms and conditions of any Incremental Commitment and 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 the applicable Incremental Facility 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 (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 Additional Loans that are secured on a pari passu basis with the initial Loans exceeds by more than 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 the initial Loans, then the interest rate then in effect for the initial Loans shall automatically be increased so that the Weighted Average Yield applicable to the Additional Loans is not more than 0.5% per annum higher than that applicable to the initial Loans. Any Additional Commitments established pursuant to an Incremental Facility Agreement, and any Additional Loans made thereunder, shall be designated as a separate series (each a “Series”) of Additional Commitments and Additional Loans, as the case may be, for all purposes of this Agreement. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Parent, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to or and immediately after giving effect to such Incremental ~~Commitments~~Commitments and the making of Loans and other extensions of credit thereunder to be made on such date, (ii) the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of~~ Borrower shall make any ~~Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth~~ payments required to be made pursuant to Section 2.16 in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of connection with such Incremental Commitments and the ~~Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with~~ related transactions under this Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ Borrower shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing for~~ such ~~Incremental Commitments~~customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and ~~such~~ other ~~documentation~~ similar documents as ~~the Administrative Agent~~ shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably be requested by the Administrative Agent ~~or the other parties to~~ in connection with any such transaction. Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this ~~Section 2.25~~Section. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~including any amendments necessary~~ (i) such Incremental Lender shall be deemed to ~~establish the Incremental Term Loan~~ be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the ~~reasonable opinion~~ case of any Incremental Commitment, (A) such Incremental Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the ~~Revolving Credit Commitments pursuant to this Section ‎2.25~~date of effectiveness of any Incremental Commitments, each ~~Revolving Credit~~ Lender ~~with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned~~ shall assign to each Incremental ~~Revolving Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Commitment, and each such Incremental ~~Revolving Credit~~ Lender ~~will automatically~~ shall purchase from each Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each Revolving Credit Lender~~ all the Lenders (including ~~each~~ such Incremental ~~Revolving Credit Lender~~Lenders) ~~will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon~~ ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental ~~Revolving Credit~~ 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 Additional Commitment ~~be prepaid~~ of such Series shall make extensions of credit to the Borrower in an amount not to exceed such Additional Lender’s Additional Commitment. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Borrower referred to in Section 2.22(a) and of ~~additional Revolving Loans made hereunder so that~~ the ~~Revolving Loans are thereafter held by~~ effectiveness of any Incremental Commitments, in each case advising the ~~Revolving Credit~~ Lenders ~~according to their Revolving Credit~~ 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 ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~Section 2.22.

Appears in 1 contract

Sources: Credit Agreement (PetroLogistics LP)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Effective Date, by written notice delivered to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) one or more new term loans which may be the ~~amount~~ same Class as any outstanding Class of Term Loans (a “Term Loan Increase”) and/or one or more new Classes of term loans (collectively, with any Term Loan Increase (and including the Tranche B Term Loans and Tranche B-1 Term Loans), the “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Term Loans”), (ii) one or more increases in the ~~date on which~~ amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (~~Revolving Credit Commitment Increase”) or ~~such longer or shorter period as the Administrative Agent shall agree)),~~ (iii) ~~whether such~~ one or more additional Classes of revolving credit commitments (the “Additional/Replacement Revolving Credit Commitments”, and together with the Incremental ~~Commitments are~~ Term Loans and the Incremental Revolving Credit ~~Commitments or~~ Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments” (including therein the Tranche B Term Loan Facility and Tranche B-1 Term Loan Facility, and the Tranche B Term Loan Commitments and ~~(iv) in~~ the ~~case of any request for Incremental~~ Tranche B-1 Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.respectively)); provided that: (bi) ~~It shall be a condition precedent~~ after giving effect to the effectiveness of any Incremental ~~Commitment that~~ Agreement referred to below, except as set forth in the proviso to clause (ib) below, no ~~Default or~~ Event of Default shall ~~have occurred~~ exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be ~~continuing immediately prior~~ waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or ~~immediately~~ Section 11.5, which requirement may not be waived by such Incremental Lenders); and (ii) after giving effect to the incurrence of such Incremental ~~Commitments~~Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), ~~(ii)~~ the ~~Total Leverage Ratio, determined~~ Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis ~~(assuming that all Incremental Commitments have been fully funded~~ with the requirements of Sections 10.9 and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and 10.10 as of the ~~date~~ most recently ended Test Period on or prior to the incurrence of any such Incremental ~~Commitments become effective (or~~ Facilities, calculated on a Pro Forma Basis, in each case as if such ~~representation~~ Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and ~~warranty relates to another date, such other date~~any related transactions had occurred) ~~and (iv)~~ on the ~~terms~~ first day of such ~~Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~Test Period. (cb) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be ~~established pursuant to~~ in an ~~amendment~~ aggregate principal amount that is not less than $5,000,000 (~~an “Incremental Assumption Agreement”~~provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) ~~relating to this Agreement. The terms~~ (and in minimum increments of $1,000,000 in excess thereof), and following the Effective Date, the aggregate amount of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (Increases and the ~~Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total~~ Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and ~~shall be on terms identical to the existing Revolving Credit Commitments (~~after giving Pro Forma Effect thereto and the ~~Revolving Loans thereunder).~~ use of the proceeds thereof, of the sum of (dA) ~~In connection with any Incremental Commitments~~the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment aggregate principal amount of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion Permitted Additional Debt incurred under clause (A) of the ~~Administrative Agent and~~ proviso to Section 10.1(v)(ii) at any time following the ~~Borrower~~Effective Date), ~~to effect the provisions~~ plus (B) an aggregate additional amount of ~~this Section 2.25~~Indebtedness, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to ~~each such deemed assignment~~ any Specified Transaction to be consummated in connection therewith and ~~assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each~~ assuming that all Incremental Revolving Credit ~~Lender~~ Commitments then outstanding were fully drawn (~~including each~~ except to the extent that such Incremental Revolving Credit ~~Lender) will equal its Revolving Credit Percentage. If, on the date~~ Commitments refinanced or replaced all or any portion of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit ~~Lenders according~~ Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to ~~their Revolving Credit Percentages (after giving effect~~ Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the ~~increase in Revolving Credit Commitments)~~incurrence of any such Incremental Facility, ~~which prepayment shall be accompanied by accrued interest~~ calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the ~~Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and~~ first day of such Test Period, that is no greater than 4.0:1.0 (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.amounts under clause (A),

Appears in 1 contract

Sources: Eighth Amendment (LPL Financial Holdings Inc.)

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~increase the existing Revolving Credit Commitments of any Class (any such increase, ~~request~~ the “Incremental Revolving Credit Commitments”) and/or increase the existing Term Commitments in or incur one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount (1) not to exceed in the aggregate, at the time of incurrence the Incremental Available Amount and (2) not less than, individually, $25,000,000. All Incremental Term Loan Commitments, Incremental Term Loans, Incremental Revolving Loans and Incremental Revolving Credit Commitments shall be in Dollars. (b) Each such ~~that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice~~ Administrative Agent (or such ~~longer or~~ shorter period of time as may be agreed to by the Administrative Agent ~~shall agree~~in its sole discretion)); and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (~~iii~~each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) ~~whether~~ to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment; provided that if any such Lender does not respond within the specified time period, such Lender shall be deemed to have declined to provide such Incremental 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 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 ~~and~~ shall become effective as of such Increased Amount Date; provided that: (ivi) (x) subject, solely in the case of ~~any request for~~ Incremental Term ~~Loan Commitments~~Loans, ~~whether such Incremental Term Loan Commitments are commitments~~ to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) Section 1.09(c), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ 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 (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iiiy) the representations and warranties ~~set forth in Article III~~ of the Borrower and in each other Loan ~~Document~~ Party contained in Article V hereof shall be true and correct in all material respects (~~or in all respects, if~~ 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 ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ 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) the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 3.01); (iii) the Incremental Facilities shall be Guaranteed by the Guarantors and rank pari passu in right of security with the other ~~date) and~~ 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 ~~Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~increase made pursuant thereto. (cg) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement.~~ The terms (including pricing, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions) and conditions of the Incremental Term Loans ~~shall be determined by the Borrower~~ and ~~the~~ Incremental Term ~~Lenders and~~ Loan Commitments shall be, except as otherwise explicitly set forth herein, as agreed in the Joinder Agreement between the Borrower, the applicable Incremental ~~Assumption Agreement~~Term Loan Lenders providing such Incremental Term Loan Commitments and the Administrative Agent; provided that (i) the ~~final maturity date~~ terms of ~~any Incremental Term Loans~~ such Indebtedness (other than with respect to pricing, premiums, fees, rate floors and/or optional prepayment provisions) shall not be ~~no earlier~~ 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~~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 ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~the~~ all Incremental Term Loans of any such Indebtedness shall be no shorter than the ~~remaining average life~~ Weighted Average Life to ~~maturity~~ Maturity of any ~~then-outstanding Class~~ other Term Loans at the time of the incurrence of such Incremental Term Loans, (iii) the applicable Incremental Term ~~Loans will rank pari passu with (or junior to)~~ Loan Maturity Date of each Class shall be no shorter than the ~~Tranche B Term Loans in right of payment and with respect to security and~~ Latest Maturity Date at the ~~borrower and guarantors~~ time of the incurrence of such Incremental ~~Term Loans shall be the same as the Borrower and Guarantors with respect to the~~ Term Loans, (iv) the pricing of each Class of Incremental Term Loans may be subject to “most favored nations” provisions if and to the ~~All-~~extent set forth in ~~Yield~~ the Joinder Agreement for such Class, and (v) in the case of Incremental Term 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 mandatory prepayments of Term Loans hereunder, as specified in the applicable Joinder Agreement, and in the case of Incremental 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 ~~exceeds the initial All-in Yield~~ with excess cash flow on an annual basis. (h) The terms and provisions of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans ~~thereunder) shall be implemented as an increase to the Total~~ and Incremental Revolving Credit Commitments ~~and~~ shall be ~~on terms~~ identical to the ~~existing~~ other Revolving Credit Loans of the Class being so increased and the Revolving Credit Commitments ~~(and~~ of the Class being so increased; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving ~~Loans thereunder)~~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. (di) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25,~~ 2.14 (including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to ~~establish the Incremental Term Loan Commitments and~~ enable any Incremental Term Loans ~~as a new Class or tranche of~~ that are intended to be fungible with any other Term Loans ~~and~~ to be fungible with such other ~~technical~~ Term Loans, which shall include any amendments ~~as may be necessary or appropriate in~~ that modify the ~~reasonable opinion~~ aggregate principal amount of scheduled installment payments to the ~~Administrative Agent and~~ extent such amendment does not decrease the ~~Borrower in connection with the establishment of~~ installment payment an existing Term Lender would have received prior to giving effect to any such ~~new Class or tranche, in each case on terms consistent with this Section 2.25~~amendment). (ej) ~~Upon each increase~~ This Section 2.14 shall supersede any provisions in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect 2.13 or Section 10.01 to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 1 contract

Sources: Credit Agreement (Healthequity, Inc.)

Incremental Facilities. (a) The ~~Borrower may~~Company may on one or more occasions after the Closing Date, by written notice to the Administrative ~~Agent from time to time~~Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that the aggregate amount of the Incremental Commitments in established under this Section 2.21 on any date, together with the aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) on such date, shall not exceed an amount equal to (a) the Base Incremental Amount in effect on such ~~that~~date, ~~after giving effect thereto,~~ plus (b) the amount of voluntary prepayments of Term Loans pursuant to Section 2.11(a) (other than those financed with the proceeds of Indebtedness) prior to such date (less the aggregate amount of Incremental Commitments and Alternative Incremental Facility Indebtedness established ~~at or~~ prior to such ~~time does not exceed $100,000,000~~date in reliance on this amount), plus (c) an additional amount subject to the Maximum Incremental Ratio Amount as of such date. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term ~~Loan Commitments~~ Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (ivy) any Person that the Company proposes to become an Incremental Lender, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of ~~any request for~~ an Incremental ~~Term Loan Commitments~~Revolving Commitment, ~~whether such Incremental Term Loan Commitments are commitments~~ must be reasonably satisfactory to ~~make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (~~the Administrative Agent, each ~~of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional~~ Issuing Bank and the Swingline Lender). (b) ~~It shall be a condition precedent to the effectiveness~~ 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) no Default or Event of Default~~ the upfront fees applicable to any Incremental Revolving Facility shall ~~have occurred~~ be as determined by the Company and ~~be continuing immediately prior to or immediately after giving effect to~~ the Incremental Revolving Lenders providing such Incremental ~~Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ Facility. The terms and ~~without netting the proceeds~~ conditions of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as Term Facility of ~~the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments~~ a Class and the Incremental Term Loans ~~or Incremental Revolving Loans~~ to be made thereunder shall ~~comply with Section 2.25(c). (c)~~ be, except as otherwise set forth herein or in the applicable Incremental ~~Commitments shall be established pursuant~~ Facility Amendment, identical to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ those of the Term Commitments and the Term Loans of such Class; provided that (i) the upfront fees, interest rates and floors and, subject to the other restrictions below, amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the ~~Borrower~~ Company and the Incremental Term Lenders ~~and set forth~~ providing the relevant Incremental Term Commitments, (ii) except in the ~~applicable~~ case of an Incremental ~~Assumption Agreement; provided that (i)~~ Term Facility effected as an increase to an existing Class of Term Loans, the ~~final~~ weighted average life to maturity ~~date~~ of any Incremental Term Loans ~~shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans~~ that are “term A loans” shall be no shorter than the remaining weighted average life to maturity of the Terms Loans that are “term A loans” with the latest Maturity Date and the weighted average life to maturity of any ~~then~~Incremental Term Loans that are “term B loans” shall be no shorter than the remaining weighted average life to maturity of the Terms Loans that are “term B loans” with the latest Maturity Date, (iii) if the all-~~outstanding Class~~ in yield relating to any Incremental Term Loan that is a “term B loan” exceeds the all-in yield relating to the Initial Term B Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase or decrease, as applicable, in the interest rate floor applicable to the Initial Term ~~Loans~~B Loans would result in an increase or decrease, as applicable, in an interest rate then in effect for the Initial Term B Loans hereunder)), then the Applicable Rate relating to the Initial Term B Loans shall be adjusted so that the all-in yield relating to such Incremental Term Loans shall not exceed the all-in yield relating to the Initial Term B Loans by more than 0.50% and (iv) no Incremental Term Maturity Date relating to “term A loans” shall be earlier than the Term A Maturity Date and no Incremental Term Maturity Date relating to “term B loans” shall be earlier than the Term B Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Liens on the Collateral securing the other Loan Document Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company and each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no 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 full amount of such Incremental Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security~~ Commitments and the ~~borrower~~ related transactions under this Section 2.21 and ~~guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans,~~ (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans Company shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing for~~ such ~~Incremental Commitments~~legal opinions, board resolutions, secretary’s certificates, officer’s certificates and ~~such~~ other ~~documentation~~ documents as ~~the Administrative Agent~~ shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably be requested by the Administrative Agent ~~or the other parties to~~ in connection with any such transaction. Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement~~ Facility Amendment may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this Section ~~2.25~~2.21 (including, ~~including~~ without limitation, favorable amendments to any ~~amendments necessary~~ existing Class to ~~establish~~ ensure fungibility between any Incremental Commitments (or loans thereunder) and such existing Class). (d) Upon the effectiveness of an Incremental ~~Term Loan~~ Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Commitments, each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned~~ shall assign to each Incremental Revolving ~~Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Revolving Commitment, and each such Incremental Revolving ~~Credit~~ Lender ~~will automatically~~ shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Revolving Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each~~ all the Revolving ~~Credit Lender~~ Lenders (including ~~each~~ such Incremental Revolving ~~Credit Lender~~Lenders) ~~will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon~~ ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Credit~~ Commitment. (f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment ~~be prepaid~~ of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Company referred to in Section 2.21(a) and of ~~additional~~ 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 ~~Loans made hereunder so that~~ Commitments, of the Applicable Percentages of the Revolving ~~Loans are thereafter held by the Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the assignments required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~Section 2.21(e).

Appears in 1 contract

Sources: Credit Agreement (Diplomat Pharmacy, Inc.)

Incremental Facilities. (ai) ~~The Borrower may~~After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative ~~Agent from time~~ Agent, may request the establishment of (x) one or more (A) additional tranches of term loans or (B) increases (an “Incremental Term Loan Increase”) to ~~time~~an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request ~~Incremental Commitments in an~~ shall be for not less than $25,000,000 (or such lesser amount ~~such that,~~ up to the Maximum Facilities Amount) and (y) after giving effect ~~thereto~~to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed the greater of (A) $3,000,000,000 and (B) an amount equal to 350% of Consolidated EBITDA, determined to give pro forma effect to any related transactions consummated concurrently therewith, for the mostly recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1 (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments ~~established at or prior to such time does~~ shall not exceed $~~100,000,000~~500,000,000. ~~Such~~ Each such notice shall ~~set forth~~ specify the date (ieach, an “Increased Amount Date”) on which the ~~amount of~~ Borrower proposes that the Incremental Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new ClassAgent. The Borrower may ~~seek~~ approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment, (ii) any entity providing all or a portion of the Incremental Commitments ~~from existing Lenders (each~~ other than a Lender, an affiliate of ~~which~~ a Lender or an Approved Fund, shall be ~~entitled~~ reasonably acceptable to ~~agree~~ the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or ~~decline~~ delayed) and (iii) any entity providing all or a portion of the Incremental Revolving Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to ~~participate in its sole discretion)~~ each Issuing Lender (with such acceptance by the Issuing Lenders to not be unreasonably withheld or ~~any Additional Lender~~delayed). (b) It In each case, such Incremental Commitments shall ~~be a condition precedent to~~ become effective as of the ~~effectiveness of any Incremental Commitment that~~ applicable Increased Amount Date, provided that (i) no Default or Event of Default shall have occurred and be continuing ~~immediately prior to~~ on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Commitments, , (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document Borrower shall be ~~true and correct~~ in ~~all material respects (or in all respects, if qualified as to materiality) on and~~ compliance with Section 7.1 as of the ~~date such Incremental Commitments become effective (or if such representation and warranty relates~~ most recently ended fiscal quarter for which financial statements have been delivered pursuant to ~~another date, such other date) and (iv) the terms of~~ Section 6.1 after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred, (iii) the weighted average life to maturity of any Incremental Term ~~Loans~~ Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, (v) the interest rate margin in respect of any Incremental Revolving Loans ~~thereunder shall comply with Section 2.25(c).~~ that is in effect on the Increased Amount Date (cafter giving effect to original issue discount (“OID”) ~~Incremental Commitments~~ or upfront fees, (which shall be ~~established pursuant~~ deemed to ~~an amendment (an “Incremental Assumption Agreement”~~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) ~~relating~~ paid to ~~this Agreement. The terms~~ all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such 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 the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) with respect to the Term Loans ~~shall be determined by the Borrower and the~~ (other than any Incremental Tranche A Term ~~Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i)~~ Loans), if the final maturity date of any Incremental Term Loans ~~shall be no earlier~~ (except for any Incremental Tranche A Term Loans) is not at least one year later than the ~~Latest~~ Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (~~ii) the average life~~ after giving effect to ~~maturity~~ OID or upfront fees paid to all of the Incremental Term ~~Loans shall be no shorter than the remaining average life~~ Loan Lenders in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to ~~maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with~~ one or more arrangers (or ~~junior to~~their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the ~~Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ manner set forth above)) shall ~~be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans~~ not exceed by more than 50 basis points the sum of (~~the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then~~ 1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than any Incremental Tranche B A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall ~~automatically~~ be increased by so that the ~~Yield Differential, effective upon the making~~ interest rate margin in respect of such Incremental Term Loans ~~and~~ (v) after giving effect to ~~the extent the terms~~ any OID issued or such upfront fees paid to all of the Incremental Term ~~Loans are inconsistent with the terms~~ Loan Lenders in connection therewith as set forth ~~herein~~ above (~~except~~ but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, 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, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) ~~through~~ and (ivii) ~~above)~~may, at the option of the Borrower, be determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination. (c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such ~~terms~~ interests in the Revolving Loans outstanding on such Increased Amount Date as shall be ~~reasonably satisfactory~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent. Any~~ addition of such Incremental Revolving ~~Credit~~ Commitments to the Revolving Commitments, (y) 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 (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans ~~thereunder)~~ and Incremental Revolving Commitments shall be ~~implemented as an increase to the Total Revolving Credit Commitments and shall be on terms~~ substantially identical to the ~~existing~~ Revolving ~~Credit Commitments (~~Loans and the Revolving ~~Loans thereunder)~~Commitments of the Revolving Facility. (d) ~~In connection with~~ On any Increased Amount Date on which any Incremental ~~Commitments~~Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~Borrower~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~the Administrative Agent~~ and (ii) each ~~applicable~~ Incremental Synthetic L/C Lender shall ~~execute and deliver~~ become a Lender hereunder with respect to the ~~Administrative Agent an~~ Incremental ~~Assumption Agreement providing for such Incremental Commitments,~~ Synthetic L/C Commitment and ~~such other documentation as the Administrative Agent shall reasonably specify to evidence~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25~~2.23. For the avoidance of doubt, ~~including any amendments necessary to establish~~ the ~~Incremental~~ Tranche B Term ~~Loan Commitments and~~ Loans constitute Incremental Term Loans ~~as a new Class or tranche~~ for all purposes of ~~Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent~~ this Agreement and the ~~Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~other Loan Documents. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

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

Incremental Facilities. ~~(a) The~~ On one or more occasions at any time after the Effective Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request (A) an increase to the existing Revolving Commitments (any such increase, ~~request~~ the “New Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”, together with the New Revolving Commitments, the “Incremental Commitments”), either as an increase to the then existing Term Facility or as a new term loan tranche (a “New Term Loan Tranche”), by up to an aggregate amount not to exceed $450,000,000 for all Incremental Commitments. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments ~~in an amount such that~~shall be effective, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice~~ Administrative Agent (or such ~~longer or~~ shorter period as the Administrative Agent ~~shall~~ may agree). The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments on any Increased Amount Date shall be in an aggregate amount that is an integral multiple of $5,000,000 and not less than $25,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment and if any Lender so approached fails to respond, such Lender shall be deemed to have declined to provide such Incremental Commitments, and (z) any Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Administrative Agent (such approval not to be unreasonably withheld or delayed), and, in the case of a New Revolving Commitment, each of the Issuing Banks (~~iii) whether~~ each of which approvals shall not be unreasonably withheld or delayed), unless such ~~Incremental~~ New Revolving Loan Lender or New Term Loan Lender is an existing Lender, an Affiliate of an existing Lender or an Approved Fund. Except as set forth in this Section 2.04, the terms and provisions of any New Revolving Commitments ~~are Incremental~~ shall be identical to the existing Revolving ~~Credit Commitments or Incremental~~ Commitments. The terms and provisions of any New Term Loan Commitments and any New Term Loans shall (iva) provide that the maturity date of any New Term Loan that is a New Term Loan Tranche shall be no earlier than the Term Loan A-1 Maturity Date and shall not have a weighted average maturity earlier than the latest maturity date of the existing Term Facility, (b) shall not be secured or guaranteed unless the Obligations are ratably secured and guaranteed and (c) except as set forth in this Section 2.04 (x) with respect to any New Term Loan that is not a New Term Loan Tranche, otherwise be identical to the existing Term Loans (other than arranger fees or other up-front fees) or reasonably acceptable to the Administrative Agent and (y) with respect to any New Term Loan that is a New Term Loan Tranche, be as agreed between the Borrower and the lenders providing such New Term Loans (except as otherwise set forth in this Section 2.04). The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and, in the case of ~~any request for Incremental~~ a New Term Loan ~~Commitments~~Commitment, ~~whether such Incremental Term Loan Commitments are commitments to make additional Term Loans~~ the borrowings and the use of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that proceeds thereof, (i) no Default or Event of Default shall have occurred and be is continuing ~~immediately prior to or~~ as of the effective date of such an increase and immediately after giving effect ~~to such Incremental Commitments,~~ thereto and (ii) as of the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments~~ last day of the most recent fiscal quarter for which financial statements have been ~~fully funded and without netting~~ delivered pursuant to Section 5.01, the ~~proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ Borrower would have been in pro forma compliance with the financial covenants set forth in Section 6.12; (~~iii~~y) the representations and warranties ~~set forth~~ made or deemed made by any Loan Party in ~~Article III and in each other~~ 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~~, if~~ ) as of 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 ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (ivz) the ~~terms~~ 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 ~~Term Loans~~ Commitments; (ii) 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, and (iii) if requested by any ▇▇▇▇▇▇, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lenders; provided that such Lender shall promptly return any existing Notes held by such Lender to the Borrower (or, if lost, destroyed or ~~Incremental~~ mutilated, if requested by the Borrower, a lost note affidavit including a customary indemnity). On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan 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 such existing Revolving Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving 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 ~~comply with Section 2.25(c).~~ be deemed, for all purposes, a Revolving Loan and (c) ~~Incremental~~ each New Revolving Loan Lender shall become a Lender with respect to its New Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall ~~be established pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an a “~~Incremental Assumption Agreement~~New Term Loan”) ~~relating~~ in an amount equal to ~~this Agreement~~its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the New Term Loans made pursuant thereto. The ~~terms~~ Administrative Agent shall notify the Lenders promptly upon receipt of the ~~Incremental~~ 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~~ Loan Commitments and the New 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, in each case subject to the assignments contemplated by this Section. The up-front fees payable to the New Revolving Loan Lenders and/or New Term Loan Lenders shall be determined by the Borrower and the applicable New Revolving Loan Lenders and/or New Term Loan Lenders. The Incremental ~~Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans~~ Commitments shall be ~~no earlier than the Latest Maturity Date, (ii) the average life~~ effected pursuant to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (one or ~~junior to) the Tranche B Term Loans in right of payment~~ more Additional Credit Extension Amendments executed and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans delivered by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the New Revolving Loan Lender or New Term Loan Lender, as applicable, and the Administrative ~~Agent~~ Agent, and each ~~applicable Incremental Lender~~ of which shall ~~execute and deliver to~~ be recorded in the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental LenderRegister. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Each Additional Credit Extension Amendment may, without the consent of any other ~~Lender~~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 ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.04. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

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

Incremental Facilities. (a) The Borrower may, ~~by written notice to the Administrative Agent~~ at any time and from time to time, elect to request the establishment of (x) one or more additional tranches of term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental ~~Commitments~~ Term Commitments”) or (y) one or more tranches of revolving credit facilities (the “Incremental Revolving Commitments”, together with the Incremental Term Commitments, the “Incremental Commitments”; and the loans thereunder, “Incremental Loans”), in an aggregate principal amount not in excess of the then-available Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such ~~that, after giving effect thereto,~~ lesser amount as (x) may be approved by the ~~aggregate amount~~ Administrative Agent in its reasonable discretion or (y) shall constitute the then-available Maximum Incremental Facilities Amount at such time). The Borrower may approach any existing Lender or any Additional Lender to provide all or a portion of the Incremental ~~Commitments established at~~ Commitments; provided that any Lender offered or ~~prior~~ approached to ~~such time does not exceed $100,000,000. Such notice shall set forth (i) the amount~~ provide all or a portion of the Incremental Commitments ~~being requested (which~~ may elect or decline, in its sole discretion, to provide an Incremental Commitment, and the Borrower shall ~~be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~have no obligation to approach any existing Lender to provide any Incremental Commitment; provided, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as further, that the Administrative Agent shall ~~agree))~~have consented to such Additional Lender’s providing of the Incremental Commitments to the extent such consent, ~~(iii~~if any, would be required under Section 13.6(b) ~~whether~~ in connection with an assignment of Term Loans or Commitments to such Additional Lender. In each case, such Incremental Commitments ~~are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and~~ shall become effective as of the date determined by the Borrower (~~iv) in~~ the ~~case of any request for Incremental Term Loan Commitments~~“Increased Amount Date”); provided that, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) (x) other than as described in the immediately succeeding clause (y), no ~~Default or~~ Event of Default shall ~~have occurred and be continuing~~ exist on such Increased Amount Date immediately ~~prior to~~ before or immediately after giving effect to such Incremental Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Commitment is being provided in connection with a Permitted Acquisition or similar Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Specified Default shall exist on such Increased Amount Date, (ii) in connection with any incurrence of Incremental Loans or establishment of Incremental Commitments, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents unless requested by the lenders providing such Incremental Loans or Incremental Commitments (subject to waiver by such lenders of any such requirement) and (iii) the establishment of Incremental Commitments or the incurrence of Incremental Loans shall be effected pursuant to one or more amendments (each, an “Incremental Amendment”) to this Agreement executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e). For all purposes of this Agreement, any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase (such new or existing series of Term Loans, each, a “Series”). (b) The terms and conditions of the Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent; provided that (i) such Incremental Revolving Commitments may have a maturity that is shorter than the Maturity Dates of the Term Loans but such maturity shall be longer than the maturity date of the Initial ABL Facility, (ii) the ~~Total Leverage Ratio~~pricing, interest rate margins, discounts, premiums, interest rate floors and fees of such Incremental Revolving Commitments shall be determined ~~on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ by the Borrower and ~~without netting~~ the ~~proceeds of any Incremental Loans),~~ lender(s) thereunder and shall not ~~exceed 2.75:1.00~~be subject to any “most-favored nation” provisions (including under Section 2.14(d)(iv) below), (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Revolving Commitments ~~become effective (or if such representation~~ may have sub-facilities for letters of credit and ~~warranty relates to another date~~swingline loans, ~~such other date) and~~ (iv) lenders providing such Incremental Revolving Commitments shall be included in the ~~terms~~ definition of “Required Lenders”, (v) if such Incremental Revolving Commitments benefit from a financial covenant, the Term Loans shall not be required to enjoy the same benefit of such financial covenant and they shall cross accelerate (instead of cross default) to a breach of such financial covenant, (vi) customary amendments to the definition of “Maximum Incremental Facilities Amount” may be made to permit any repayment of loans under Incremental Revolving Commitments accompanied with permanent terminations of such Incremental Revolving Commitments to be added to clause (2) of such definition, (vii) no Subsidiary (other than a Guarantor) is an obligor of such Incremental Revolving Commitments and (viii) if secured, such Incremental Revolving Commitments are not secured by any assets other than all or any portion of the Collateral or any Liens other than Liens that are pari passu with or junior to the Liens securing the Obligations. (c) On any Increased Amount Date on which any Incremental Term Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing applicable terms and conditions, (i) each Lender with an Incremental Term Commitment of any Series shall make a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Commitment of such Series, and (ii) each Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Commitment of such Series and the Incremental Term Loans or of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental ~~Revolving~~ Term Loans ~~thereunder shall comply with Section 2.25(c)~~for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Term Loans. (cd) The terms and provisions of any Incremental Term Commitments and the respective related Incremental Term Loans, in each case effected pursuant to a Term Loan Increase shall be ~~established pursuant~~ substantially identical to ~~an amendment (an “~~the terms and provisions applicable to the Class of Term Loans subject to such increase; provided that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental ~~Assumption Agreement”~~Term Commitments and the respective related Incremental Term Loans, that may be agreed to among the Borrower and the lender(s) ~~relating to this Agreement~~providing and/or arranging such Incremental Term Commitments may be paid in connection with such Incremental Term Commitments. The terms and provisions of any Incremental Term Commitments and the respective related Incremental Term Loans of any Series not effected 88 pursuant to a Term Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that: (i) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, provided that the requirements of the foregoing clause (i) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements; (ii) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans; (iii) the Incremental Term Loans (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans are unsecured or rank junior in right of payment or as to security with the Obligations, such Incremental Term Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any Obligations outstanding under this Agreement and, if secured, shall not be secured by assets of the Credit Parties other than Collateral (and, unless secured on a pari passu basis with the Obligations, shall be subject to a subordination agreement (if payment subordinated) and/or the Applicable Intercreditor Agreement); (iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule (subject to clauses (i) and (ii) above) applicable to any Incremental Term Loans shall be determined by the Borrower and the ~~Incremental Term Lenders and set forth~~ lender(s) thereunder; provided, however, that, if the Yield, in ~~the applicable Incremental Assumption Agreement; provided that (i) the final maturity date~~ respect of any Incremental Term Loans ~~shall be no earlier than the Latest Maturity Date,~~ that (iiw) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and security with ~~respect to security and~~ the ~~borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the~~ Initial Term Loans, (ivx) if are incurred on or prior to the ~~All-in Yield on such Incremental~~ date that is 12 months after the Closing Date and (y) have a maturity date that is less than two years after the Initial Term ~~Loans~~ Loan Maturity Date as of the date of funding thereof, exceeds the ~~initial All-~~Yield in ~~Yield~~ respect of ~~the Tranche B~~ any Initial Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.50%, then the Applicable ABR Margin ~~for~~ or the ~~Tranche B~~ Applicable LIBOR Margin, as applicable, in respect of such Initial Term Loans shall ~~automatically~~ be ~~increased by~~ adjusted so that the Yield ~~Differential, effective upon~~ in respect of such Initial Term Loans is equal to the ~~making~~ Yield in respect of such Incremental Term Loans ~~and~~ minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, the increased Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans; and (v) ~~to the extent~~ all other terms of any Incremental Term Loans (other than as described in clauses (i), (ii), (iii) and (iv) above) may differ from the terms of the Initial Term Loans if agreed by the Borrower and the lender(s) providing such Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder)Loans. (de) ~~In connection with any Incremental Commitments, the Borrower, the~~ The Administrative Agent and ~~each applicable Incremental Lender shall execute and deliver~~ the Lenders hereby consent to the ~~Administrative Agent an~~ consummation of the transactions contemplated by this Section 2.14 and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14. Each Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other ~~Lender~~Lenders, (x) effect ~~such~~ technical and corresponding amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section ~~2.25, including any amendments necessary~~ 2.14 and (y) with respect to ~~establish~~ the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or trancheRevolving Commitments, ~~in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant~~ add provisions solely applicable to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender Commitments (including ~~each such~~ provisions relating to extensions and refinancings of Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

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

Incremental Facilities. (a) ~~The~~ So long as no Event of Default under subsection 8(a) or (f) exists or would arise therefrom, the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Closing Date, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the ~~amount of the~~ “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Term Loan Commitments”), (ii) to increase the ~~date on which such Incremental Commitments are requested~~ loans in any Tranche by requesting new term loan commitments to ~~become effective~~ be added to an existing Tranche of Loans (~~which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)~~“Supplemental Term Loan Commitments”), (iii) ~~whether such Incremental Commitments are~~ to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving ~~Credit Commitments or Incremental Term Loan Commitments~~ Commitments”), and (iv) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (together with the ~~case of any request for~~ Incremental Term Loan Commitments, ~~whether such Incremental~~ Supplemental Term Loan Commitments ~~are commitments~~ and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, after the Fourth Amendment Effective Date, (i) the aggregate principal amount of Incremental Commitments permitted pursuant to ~~make additional Term Loans~~ this subsection 2.5 is limited, at the time the respective Incremental Commitment becomes effective, to (A) the aggregate principal amount (not less than zero) of Indebtedness that is permitted to be Incurred under subsection 7.1(b)(xiv)(i) by the Borrower or its Restricted Subsidiaries at such time plus (B) $250 million and (ii) if any portion of an Incremental Commitment is to be incurred in reliance on subsection 7.1(b)(xiv)(i), the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such ratio). Any loans made in respect of any ~~then outstanding Class or commitments to make~~ such Incremental Commitment (other than Supplemental Term ~~Loans of~~ Loan Commitments) shall be made by creating a new ~~Class~~Tranche. ~~The Borrower may seek~~ Each Incremental ~~Commitments from existing Lenders (each of which~~ Commitment under any Term Loan Facility made available pursuant to this subsection 2.5 shall be ~~entitled to agree or decline to participate~~ in ~~its sole discretion) or any Additional Lender~~a minimum aggregate amount of at least $15,000,000 and in integral multiples of $1,000,000 in excess thereof. (b) It Each request from the Borrower pursuant to this subsection 2.5 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 existing Lender and any such bank or other financial institution, an “Additional Lender”), provided, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the consent of any swingline lender or issuing lender, as the case may be, that may then be required pursuant to subsection 10.6 (such consent not to be unreasonably withheld or delayed) (it being understood that any such Additional Lender that is an Affiliated Lender shall be ~~a condition precedent~~ subject to the ~~effectiveness~~ provisions of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loanssubsection 10.6(h), ~~shall not exceed 2.75:1.00~~mutatis mutandis, ~~(iii)~~ to the ~~representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects,~~ same extent as if ~~qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of~~ such Incremental Commitments and ~~the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c~~related Obligations had been obtained by such Lender by way of assignment). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit O (the “Increase Supplement”) or by each Additional Lender that is not an existing Lender substantially in the form attached hereto as Exhibit P (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender, and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Loan under the applicable Tranche, for all intents and purposes of this Agreement. (d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall ~~be established~~ become commitments under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Commitment Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agenteach Additional Lender. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the An Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other Lender, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower~~Administrative Agent, to effect the provisions of this ~~Section 2.25~~subsection 2.5, ~~including~~ provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any ~~amendments~~ Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loans, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans and (II) so long as any Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the applicable Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for such Term Loans than such Incremental Loans), provided that any Incremental Loans constituting Initial Term Loan Refinancing Debt may provide for more favorable amortization payments than the applicable Term Loans); (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the weighted average life to maturity of the Term B-24 Loans (other than (a) any Incremental Commitments and related Incremental Term Loans constituting Initial Term Loan Refinancing Debt that may provide for an earlier maturity date and/or a shorter average life to maturity than the Term B-24 Loans, and (b) an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, that, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Maturity Date of the Term B-24 Loans or the weighted average life to maturity of the Term B-24 Loans, as applicable); (iv) the interest rate margins applicable to the loans made pursuant to the Incremental Commitments, and the amortization schedule applicable to any Incremental Term Loans, shall be determined by the Borrower and the applicable Additional Lenders; provided that, in the event that the applicable interest rate margins for any term loans Incurred by the Borrower under any Incremental Term Loan Commitment are higher than the applicable interest rate margin for any Term Loans by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for such Term Loans is equal to ~~establish~~ the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided further that, in determining the applicable interest rate margins for the Term Loans and the Incremental Term ~~Loan Commitments and~~ Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Term Loans or any Incremental Term ~~Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate~~ Loan in the ~~reasonable opinion of the Administrative Agent and the Borrower~~ initial primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the ~~establishment~~ Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on any Term Loans that became effective subsequent to the FourthFifth Amendment Effective Date but prior to the time of such ~~new Class~~ Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to such Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for such Term Loans shall be required, to the extent an increase in the interest rate floor for such Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of the Additional Lenders in any required vote or ~~tranche~~action of the Required Lenders, Supermajority Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Permitted Obligations” and “Refinancing Indebtedness” and subsection 7.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Maturity Date of such Term Loans and weighted average life to maturity of such Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable, and (4) in the case of an Incremental Revolving Commitment, add, or provide for adjustments to, the definition of “Agent Default,” “Defaulting Lender” protections and appropriate modifications to subsection 2.7 to provide for “amend and extend” mechanics for Incremental Revolving Commitments (and related Obligations), in each case on terms ~~consistent with this Section 2.25. (e) Upon each increase in~~ agreed by the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participationsBorrower, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders ~~hereby agree that~~ providing such Commitments (including any swingline lender or issuing lender); and (vi) the ~~minimum borrowing~~other terms and documentation in respect thereof, ~~pro rata borrowing and pro rata payment requirements contained elsewhere in~~ to the extent not consistent with this Agreement ~~shall not apply~~ as in effect prior to giving effect to the ~~transactions effected pursuant~~ Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the ~~immediately preceding sentence~~Borrower.

Appears in 1 contract

Sources: Credit Agreement (Hd Supply, Inc.)

Incremental Facilities. (a) The Borrower may, ~~by written notice to the Administrative Agent from time to~~ at any time, ~~request~~ on one or more occasions pursuant to an Incremental ~~Commitments in~~ Facility Agreement (i) add one or more new tranches of term facilities and/or increase the principal amount of the Tranche B-1 Term Loans, the Tranche B-2 Term Loans or any Additional Term Loans by requesting new term loan commitments to be added to such Loans (any such new tranche or increase, an ~~amount such that~~“Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, ~~after giving effect thereto,~~ “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 ~~established at~~ (any such new tranche or ~~prior~~ increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to ~~such time does not~~ exceed ~~$100,000,000. Such notice shall set forth~~ the Incremental Cap; provided that: (i) ~~the amount of the~~ no Incremental ~~Commitments being requested (which shall~~ Commitment may be ~~in minimum increments of $500,000 and a minimum amount of~~ less than $5,000,000), , (ii) except as separately agreed from time to time between the ~~date on which~~ Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such ~~Incremental Commitments are requested to become effective (which~~ commitments shall ~~not~~ be ~~less than 10 Business Days nor more than 60 days after~~ within the ~~date~~ sole and absolute discretion of such ~~notice (or such longer or shorter period as the Administrative Agent shall agree)),~~ Lender, (iii) ~~whether such~~ no Incremental ~~Commitments are Incremental Revolving Credit Commitments~~ Facility or Incremental ~~Term~~ Loan ~~Commitments and~~ (ivor the creation, provision or implementation thereof) in shall require the ~~case~~ approval of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing ~~Lenders (each of which shall be entitled to agree or decline to participate~~ Lender other than in its ~~sole discretion)~~ capacity, if any, as a Lender providing all or ~~any Additional Lender. (b) It shall be a condition precedent to the effectiveness~~ part of any Incremental Commitment ~~that (i) no Default~~ or ~~Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such~~ Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and 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 ~~terms of such~~ Effective Yield applicable to any Incremental ~~Commitments and the Incremental Term Loans~~ Facility or Incremental ~~Revolving~~ Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall will be determined by the Borrower and the lenders providing such Incremental ~~Term Lenders and set forth in the applicable~~ Facility or Incremental ~~Assumption Agreement~~Loans; provided that in the case of any Incremental Term Facility which are pari passu with the Initial Term Loans in right of payment and with respect to security, such Effective Yield applicable thereto will not be more than 0.50% higher than the Effective Yield applicable to the Class of Initial Term Loans denominated in the same currency as such Incremental Term Facility unless the Applicable Rate with respect to such Initial Term Loans is adjusted to be equal to the Effective Yield with respect to the relevant Incremental Term Facility, minus 0.50%, (ivi) the final maturity date of with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity ~~Date,~~ Date at the time of the incurrence thereof, (iivii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~the~~ any Incremental Term ~~Loans~~ Facility shall be no shorter than the remaining ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~any~~ the then-~~outstanding Class~~ existing tranche of Term ~~Loans,~~ Loans (~~iii~~without giving effect to any prepayments thereof), (viii) ~~the~~ (A) any Incremental Term ~~Loans will~~ Facility may rank pari passu with (or junior ~~to) the Tranche B~~ 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 subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral, (A) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security shall be made on a pro rata basis with such existing Term Loans and (B) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall be made on a junior basis with respect to such existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except, in each case, that the Borrower and the ~~borrower and guarantors of~~ lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (x) except as otherwise agreed by the ~~same as~~ lenders providing the ~~Borrower and Guarantors~~ relevant Incremental Facility in connection with ~~respect~~ a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default shall exist immediately prior to ~~the Term Loans, (iv) if the All-in Yield on~~ or after giving effect to such Incremental ~~Term Loans exceeds the initial All-~~Facility, (xi) except as otherwise required or permitted in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and clauses (v) ~~to the extent~~ through (ix) above, all other terms of any Incremental Term Facility, if not consistent with the terms of the ~~Incremental~~ Initial Term ~~Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above)~~Loans, ~~such terms~~ shall be reasonably satisfactory to the ~~Administrative Agent. Any Incremental Revolving Credit Commitment (~~Borrower and the ~~Incremental Revolving~~ Administrative Agent (it being understood that (x) any terms which are not consistent with the terms of the Initial Term Loans ~~thereunder)~~ and are applicable only after the then-existing Latest Term Loan Maturity Date shall be ~~implemented as an increase~~ deemed satisfactory to the ~~Total Revolving Credit Commitments~~ Administrative Agent and ~~shall be on~~ (y) terms ~~identical~~ contained in such Incremental Term Facility that are more favorable to the ~~existing Revolving Credit Commitments~~ lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (~~and~~ or added) to the ~~Revolving Loans thereunder). (d) In connection with any Incremental Commitments~~Loan Documents for the benefit of the Term Lenders or, ~~the Borrower~~as applicable, the Administrative Agent ~~and each~~ (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Agreement) shall be deemed satisfactory to the Administrative Agent), (xii) the proceeds of any Incremental Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement, (xiii) on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in 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 an and the Borrower all such documentation (including the relevant Incremental ~~Assumption Agreement providing for~~ Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental Commitment, ~~and such other documentation as~~ each Additional Lender shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall ~~reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of~~ have received customary written opinions of ~~counsel~~ 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 ~~documentation consistent with~~ documents as it shall reasonably require from such Additional Lender, (iii) the ~~conditions~~ Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iv) the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof: (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (B) to the extent applicable, certifying that the condition set forth in ~~Section 4.02~~clause (a)(x) above has been satisfied. (e) To the extent the Borrower elects to implement any Incremental Revolving Facility, ~~all~~ then notwithstanding any other provision of this Agreement to the ~~extent~~ contrary, the Borrower shall be permitted (without the consent of any Term Lender) to amend the terms of this Agreement pursuant to an amendment hereto (or an amendment and restatement hereof), in form and substance reasonably ~~requested~~ 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 ~~or the other parties~~ to ~~such~~ enter into any Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement ~~may, without consent of~~ and any other ~~Lender, effect such~~ 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 reasonable opinion~~ respect of ~~the Administrative Agent and the Borrower,~~ Loans or commitments increased or extended pursuant to ~~effect the provisions of~~ this Section ~~2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans~~ 2.22 and such ~~other~~ technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new ~~Class~~ tranches or ~~tranche~~sub-tranches, in each case on terms consistent with this Section ~~2.25~~2.22. (ef) ~~Upon each increase~~ To the extent the provisions of clause (a)(xiii) above require that Term Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of 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 to outstanding LIBO Rate Loans of the ~~Revolving Credit Commitments pursuant~~ respective Class and which will end on the last day of such Interest Period). (g) Notwithstanding anything to the contrary in this Section ~~‎2.25~~2.22 or in any other provision of any Loan Document, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from if the proceeds of ~~additional Revolving Loans made hereunder so that the Revolving Loans~~ any Incremental Facility are ~~thereafter held by the Revolving Credit Lenders according~~ intended to ~~their Revolving Credit Percentages (after giving effect~~ be applied to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent finance an acquisition and the Lenders ~~hereby agree that~~ or Additional Lenders providing such Incremental Facility so agree, the ~~minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere~~ availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (h) This Section 2.22 shall supersede any provision in ~~this Agreement shall not apply~~ Section 2.18 or 9.02 to the ~~transactions effected pursuant to the immediately preceding sentence~~contrary.

Appears in 1 contract

Sources: Term Loan Credit Agreement (PQ Group Holdings Inc.)

Incremental Facilities. ~~(a)~~ The Borrower ~~may~~may request, from time to time, on any Business Day prior to the date that is six (6) months prior to the Revolving Credit Termination Date by written notice to the Administrative Agent ~~from time~~ in the form attached hereto as Exhibit J or in such other form reasonably acceptable to ~~time, request Incremental Commitments in an amount such that, after giving effect thereto,~~ the ~~aggregate amount of Incremental Commitments established~~ Administrative Agent (a “Commitment Amount Increase Request”) at or least five (5) Business Days prior to the desired effective date of such ~~time does not exceed $100,000,000. Such notice shall set forth~~ increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments by an amount ~~of the Incremental Commitments being requested (which shall be~~ not in ~~minimum increments~~ excess of $~~500,000 and a minimum amount~~ 150,000,000 (any such increase, the “Incremental Revolving Credit Commitments”) so that the aggregate Revolving Credit Commitments are not in excess of $~~5,000,000),~~ 300,000,000 and not less than $5,000,000 individually and/or (ii) the ~~date~~ establishment of one or more new term loan commitments or an increase to the existing Term Loans (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $50,000,00075,000,000 in the aggregate and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments ~~are requested to become effective (which shall not~~ or Incremental Term Loan Commitments, as applicable, be ~~less than 10 Business Days nor more than 60 days after~~ allocated and the ~~date~~ amount of such ~~notice (or such longer or shorter period as~~ allocations; provided that the Administrative Agent ~~shall agree)), (iii) whether~~ may elect or decline to arrange such ~~Incremental Commitments are~~ Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion and ~~(iv) in~~ any Lender approached to provide all or a portion of the ~~case of any request for~~ Incremental ~~Term Loan Commitments, whether such~~ Revolving Credit Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion) , to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment (and any ~~Additional Lender. (b) It shall be a condition precedent~~ Lender may require additional time to ~~the effectiveness of any~~ review such Commitment Amount Increase Request as needed to determine whether to provide an Incremental Revolving Credit Commitment ~~that (i) no Default~~ or ~~Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such~~ an Incremental ~~Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans~~Term Loan Commitment), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the . Any Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments~~ made on an Increased Amount Date shall be ~~established pursuant to an amendment~~ designated a separate series (an each, a “~~Incremental Assumption Agreement~~Series”) ~~relating to this Agreement. The terms~~ of ~~the~~ Incremental Term Loans ~~shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date~~ for all purposes of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on this Agreement unless such Incremental Term Loans ~~exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points~~ are being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented effected as an increase to the ~~Total Revolving Credit Commitments and shall be on terms identical to the~~ existing ~~Revolving Credit Commitments (and the Revolving Loans thereunder)~~Term Loans. (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (Postal Realty Trust, Inc.)

Incremental Facilities. (a) ~~The Borrower may, by written notice to the Administrative Agent~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower Representative may, by notice to the Agent (whereupon the Agent shall promptly deliver a copy of such notice to each of the Lenders), request to incur one or more increases in the Revolving Credit Commitments (“Incremental ~~Commitments in an amount such that~~Revolving Commitments” or the “Incremental Facilities”). Notwithstanding anything to the contrary herein, ~~after giving effect thereto~~without the consent of the Required Lenders, the aggregate ~~amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the~~ principal amount of the Incremental Facilities from and after the ThirdFifth Amendment Effective Date shall not exceed $75.0100.0 million. All Incremental Revolving Commitments ~~being requested (which~~ shall be in ~~minimum increments~~ an integral multiple of $~~500,000~~ 250,000 and a in an aggregate principal amount that is not less than $5 million (or in such lesser minimum amount ~~of $5,000,000~~agreed by the Agent); provided, ~~(ii) the date on which~~ that such ~~Incremental Commitments are requested to become effective (which shall not~~ amount may be less than ~~10 Business Days nor more than 60 days after~~ the ~~date~~ applicable minimum amount if such amount represents all the remaining availability in respect of ~~such notice (or such longer or shorter period as~~ the ~~Administrative Agent shall agree)), (iii) whether such~~ Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional LenderFacilities. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving ~~Credit~~ Commitment ~~(and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and~~ shall be on terms identical to the ~~existing~~ Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby, including with respect to having the same Guarantors and being secured by the same Collateral on a pari passu basis with the applicable Facility subject to such increase except that the Maturity Date of an Incremental Revolving Commitment shall be no earlier (but may be later) than the Revolving Credit Commitments proposed to be increased. Unless the Incremental Revolving Commitment and the Revolving Credit Commitments proposed to be increased have different Maturity Dates, such Incremental Revolving Commitment shall be deemed a Revolving Credit Commitment of the applicable Revolving Credit Facility or both Revolving Credit Facilities, as the case may be, pursuant to the applicable Incremental Amendment (it being understood that an Incremental Facility establishing Incremental Revolving Commitments will not create a separate Revolving Credit Facility and such Incremental Revolving Commitments be deemed a part of the applicable Revolving Credit Facility); provided, that the Applicable Margin and the Commitment Fee Rate, in each case applicable to the Revolving Credit Commitments and Revolving Credit Loans of such Revolving Credit Facility, may be increased, without the consent of any Lender, in connection with the incurrence of any Incremental Revolving Commitment such that the Applicable Margin and the Commitment Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving Commitments. Any Incremental Revolving Commitments shall be allocated between the US Revolving Credit Facility and the Canadian Revolving Credit Facility as designated by the Borrower Representative, in consultation with the Agent; provided that the Canadian Revolving Credit Commitments (~~and~~ including the Canadian ABL Sublimit), after giving effect to the establishment of Incremental Revolving ~~Loans thereunder)~~Commitments, shall not exceed $45 million in the aggregate without the consent of the Agent. (dc) ~~In connection with~~ Each notice from any Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Revolving Commitments~~, the Borrower, the Administrative Agent and each applicable~~ . Any Additional Lenders that elect to extend Incremental ~~Lender~~ Revolving Commitments shall ~~execute and deliver~~ be reasonably satisfactory to the ~~Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments~~Borrower Representative, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02and, ~~all~~ to the extent ~~reasonably requested~~ its consent would be required with respect to an assignment to such Additional Lender under Section 9.4(b), the Agent, the Swingline Lender and each Issuing Bank (in each case, any approval thereof not to be unreasonably withheld, delayed or conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Administrative~~ Borrower Representative, any applicable Borrowers, such Additional Lender or Additional Lenders and the Agent. No Incremental Amendment shall require the consent of any Lenders or any other Person other than the Borrower Representative, any applicable Borrowers, the Agent or and the ~~other parties~~ Additional Lenders with respect to such Incremental ~~Assumption Agreement~~Amendment. The ~~Administrative~~ Lenders hereby irrevocably authorize the Agent ~~shall promptly notify each Lender~~ to enter into Incremental Amendments and, as ~~to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may~~appropriate, ~~without consent of any other Lender, effect such~~ amendments to ~~this Agreement and~~ the other Loan Documents as may be necessary in order to establish new tranches or ~~appropriate,~~ sub-tranches in ~~the reasonable opinion~~ respect of the ~~Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan~~ existing Revolving Credit Commitments and ~~Incremental Term Loans as a new Class or tranche of Term Loans and~~ such ~~other~~ technical amendments as may be necessary or appropriate in the ~~reasonable~~ opinion of the ~~Administrative~~ Agent, the Borrower Representative and the applicable Borrower to effect the provisions of this Section 2.20 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). In addition, if so provided in such Incremental Amendment and with the consent of the applicable Issuing Banks, participations in Letters of Credit expiring on or after the Maturity Date shall be re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Incremental Revolving Commitments, be deemed to be participation interests in respect of such Incremental Revolving Commitments and the terms of such participation interests (including the participation fees applicable thereto) shall be adjusted accordingly. No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Revolving Credit Commitments in respect of any Incremental Revolving Commitments shall become Revolving Credit Commitments under this Agreement. The effectiveness of any Incremental Amendment (each, an “Incremental Facility Closing Date”) shall, unless otherwise agreed to by the Agent and the ~~Borrower~~ Additional Lenders party thereto, be subject to (i) the payment in ~~connection with~~ full of all fees and expenses owing to the ~~establishment~~ Agent and the Lenders in respect of such ~~new Class~~ Incremental Facility, to the extent invoiced prior to such date and (ii) the satisfaction or ~~tranche~~waiver on the date of the effectiveness of the Incremental Revolving Commitments thereunder of no Specified ABL Default shall exist after giving effect to such Incremental Revolving Commitments (or, in ~~each~~ the case of a Permitted Acquisition, permitted Investment or Limited Condition Transaction, no Specified ABL Default (as determined in accordance with Section 1.5(d)) shall exist on ~~terms consistent with this Section 2.25. (e)~~ the LCT Test Date and no Specified Event of Default shall exist on the date that such Incremental Revolving Commitments become effective). Upon each increase in the Revolving Credit Commitments of a Revolving Credit Facility pursuant to this Section ~~‎2.25~~2.20, each Lender under such Revolving Credit ~~Lender with a Revolving Credit Commitment~~ Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving ~~Credit Lender~~ Commitment (each an “Incremental Lender”) in respect of such increase, and each such Incremental ~~Revolving Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit~~ Lender’s participations hereunder in outstanding Letters of Credit under the applicable Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender in such Revolving Credit ~~Lender~~ Facility (including each such Incremental ~~Revolving Credit~~ Lender) will equal ~~its~~ the percentage of the Total Revolving Credit ~~Percentage. If, on the date~~ Commitments of ~~such increase, there are any Revolving Loans outstanding,~~ all Lenders in such Revolving ~~Loans shall upon the effectiveness of~~ Credit Facility represented by such ~~Incremental~~ Lender’s Revolving Credit Commitment ~~be prepaid from~~ thereunder. Each of the ~~proceeds of additional Revolving Loans made hereunder so~~ parties hereto hereby agrees that the ~~Revolving Loans are thereafter held by~~ Agent may, in consultation with the ~~Revolving Credit Lenders according~~ Borrower Representative, take any and all actions as may be reasonably necessary to ~~their Revolving Credit Percentages (~~ensure that, after giving effect to any Incremental Revolving Commitment, the ~~increase in~~ outstanding Revolving Credit ~~Commitments), which prepayment shall be accompanied~~ Loans are held by ~~accrued interest on~~ the ~~Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender~~ Lenders in accordance with ~~Section 2.16~~their respective Applicable Lender Percentages in respect of the applicable Revolving Credit Facility. The ~~Administrative~~ foregoing may be accomplished at the discretion of the Agent, following consultation with the Borrower Representative, (A) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Agent and the Borrower Representative, and any such prepayment or assignment shall be subject to Section 2.15 but shall otherwise be without premium or penalty. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to the immediately preceding sentence. For the avoidance of doubt, no existing Lender shall be required to participate in an Incremental Facility without its consent.

Appears in 1 contract

Sources: Abl Credit Agreement (Specialty Building Products, Inc.)

Incremental Facilities. On up to four (a4) ~~The~~ occasions at any time after the Effective Date, the Borrower ~~may,~~ may by written notice to the ~~Administrative~~ Agent ~~from time~~ elect to ~~time~~request (A) an increase to the existing Revolving Commitments (any such increase, ~~request~~ the “New Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Commitments”, together with the New Revolving Commitments, the “Incremental Commitments”), by up to an aggregate amount not to exceed $500,000,000 for all Incremental Commitments. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments ~~in an amount such that~~shall be effective, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days after the date on which such notice is delivered to the Agent. The Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments ~~are requested~~ on any Increased Amount Date shall be in the minimum aggregate amount of $25,000,000, (y) any Lender approached to ~~become effective~~ provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental 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 shall be deemed to have declined to provide such Incremental Commitments, and (~~which shall not be less than 10 Business Days nor more than 60 days after the date~~ z) any Lender or other Person that is an Eligible Assignee (each, a “New Revolving Lender” or “New Term Lender,” as applicable) to whom any portion of such ~~notice~~ Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Agent (such approval not to be unreasonably withheld or ~~such longer or shorter period as the Administrative Agent shall agree)~~delayed), ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv)~~ and, in the case of a New Revolving Commitment, the Issuing Banks (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 provisions of any ~~request for Incremental~~ New Revolving Commitments shall be identical to the existing Revolving Commitments. The terms and provisions of any New Term Commitments and any New Term Loans shall (a) provide that the maturity date of any New Term Loan ~~Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of~~ that is a ~~new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which~~ separate tranche shall be ~~entitled to agree or decline to participate in its sole discretion) or~~ no earlier than the Term Maturity Date, not have a weighted average life that is shorter than the initial Term Loan, and not have any ~~Additional Lender.~~ scheduled amortization payments, (b) ~~It shall~~ 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 ~~a condition precedent~~ 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 ~~that~~ 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 Commitment, the borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall ~~have occurred~~ exist and ~~be continuing immediately prior to or immediately after giving effect to such Incremental Commitments,~~ (ii) as of the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments~~ last day of the most recent quarter for which financial statements have been ~~fully funded and without netting~~ delivered pursuant to Section 8.1 or Section 8.2, the ~~proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ Borrower would have been in compliance with the financial covenants set forth in Section 9.1; (~~iii~~y) the representations and warranties ~~set forth~~ made or deemed made by the Borrower in ~~Article III and in each other~~ 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~~, if~~ ) 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 ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents; and (ivz) the ~~terms~~ 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 ~~Term Loans or 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) 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 ~~comply with Section 2.25(c).~~ be deemed, for all purposes, a Revolving Loan and (c) ~~Incremental~~ 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 ~~be established pursuant~~ make a Loan to ~~an amendment~~ the Borrower (an a “~~Incremental Assumption Agreement~~New Term Loan”) ~~relating~~ in an amount equal to ~~this Agreement~~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 ~~terms~~ Agent shall notify the Lenders promptly upon receipt of the ~~Incremental~~ 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 ~~Loans~~ 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 Section. The upfront fees payable to the New Revolving Lenders and/or New Term Lenders shall be determined by the Borrower and the applicable New Revolving Lenders and/or New Term Lenders. The Incremental ~~Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans~~ Commitments shall be ~~no earlier than the Latest Maturity Date, (ii) the average life~~ effected pursuant to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (one or ~~junior to) the Tranche B Term Loans in right of payment~~ more Additional Credit Extension Amendments executed and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans delivered by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the ~~Administrative Agent~~ New Revolving Lenders or New Term Lenders, as applicable, and the Agent, and each ~~applicable Incremental Lender~~ of which shall ~~execute and deliver to~~ be recorded in the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental LenderRegister. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Each Additional Credit Extension Amendment may, without the consent of any other ~~Lender~~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 ~~reasonable~~ opinion of the ~~Administrative Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.14. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

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

Incremental Facilities. (a) ~~The~~ Any Borrower ~~may,~~ (including any Additional Borrower) or any other Guarantor may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Sterling. In connection with the incurrence of any Indebtedness under this Section 2.14, at the request of the Administrative Agent, the Borrowers shall provide to the Administrative Agent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor and, subject to reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (i) or clause (ii) of the definition of “Maximum Incremental Facilities Amount”. The Borrowers may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. Subject to Section 1.12 in each case, such New Loan Commitments shall be subject to (i) no Event of Default under Section 11.1 or Section 11.5 (with respect to the Borrowers) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of the Borrowers and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Increased Amount Date, Additional Revolving Credit Loans shall be designated a separate Series of Revolving Credit Loans for all purposes of this Agreement. Notwithstanding anything else to the contrary in this Section 2.14 or otherwise in this Agreement, any Incremental Loans may be incurred by any Borrower(s) and/or any other Credit Party at the option of the Borrowers. (b) Incremental Revolving Credit Commitments shall be subject to the satisfaction of the following terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from ~~time to time~~each of the Lenders with Revolving Credit Commitments of such Class, ~~request Incremental Commitments~~ at the principal amount thereof, such interests in ~~an amount~~ the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect ~~thereto~~to all such assignments and purchases, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date Revolving Credit Loans of such ~~notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental~~ Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments ~~or Incremental Term Loan Commitments and (iv) in the case~~ of ~~any request for Incremental Term Loan Commitments, whether~~ such ~~Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding~~ Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the ~~Total Leverage Ratio~~New Revolving Loan Lenders, ~~determined on~~ the “Incremental Revolving Loan Lenders”) shall become a ~~Pro Forma Basis (assuming~~ Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that ~~all Incremental Commitments have been fully funded and without netting~~ the ~~proceeds of any Incremental Loans)~~Administrative Agent, ~~shall not exceed 2.75:1.00, (iii)~~ the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments Swingline Lender and the ~~Incremental Term Loans~~ Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans ~~thereunder shall comply with Section 2.25(c)~~or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender. (c) ~~Incremental~~ New Term Loan Commitments of any Series shall be ~~established pursuant~~ subject to ~~an amendment~~ the satisfaction of the following terms and conditions, (an i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrowers (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental ~~Assumption Agreement~~Loans”) ~~relating~~ in an amount equal to ~~this Agreement.~~ its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. (d) The terms and provisions of the ~~Incremental~~ New Term Loans and New Term Loan Commitments of any Series shall be ~~determined by the Borrower~~ on terms and ~~the Incremental Term Lenders and~~ documentation set forth in the ~~applicable Incremental Assumption Agreement~~Joinder Agreement as determined by the Borrowers; provided that (i) the ~~final maturity date~~ applicable New Term Loan Maturity Date of ~~any Incremental Term Loans~~ each Series shall be no earlier than the ~~Latest~~ Tranche B-7 Term Loan Maturity Date, ; (ii) the weighted average life to maturity of ~~the Incremental~~ all New Term Loans shall be no shorter than the remaining weighted average life to maturity of the then existing Tranche B-7 Term Loans (provided that the foregoing clauses (i) and (ii) shall not apply to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in New Term Loans as selected by the Borrowers, (B) customary bridge loans (including 364-day bridge loans); provided, that either (x) the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than the Tranche B-7 Term Loan Maturity Date or (y) any ~~then-outstanding Class~~ loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of ~~Term Loans~~clauses (i) and (ii), (C) customary term A loans and (D) Indebtedness issued subject to customary escrow arrangements that have redemption requirements related to such escrow release (so long as subject to such escrow)), (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment~~ pricing, interest rate margins, discounts, premiums, rate floors, fees, and ~~with respect~~ amortization schedule applicable to ~~security and the borrower and guarantors of the Incremental~~ any New Term Loans shall be determined by the ~~same as~~ Borrowers and the ~~Borrower and Guarantors~~ Lenders thereunder; provided, that except with respect to (A) up to the greater of (x) $1,100,000,000 and (y) 100% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) of New Term ~~Loans~~Loans (as selected by the Borrowers), (ivB) customary term A loans, (C) customary bridge loans (including 364-day bridge loans) (provided that any loans, notes, securities or other Indebtedness (other than revolving loans) which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (iii)) and (D) New Term Loans incurred in connection with a Permitted Acquisition or other Permitted Investment, with respect to any such non-excepted New Term Loans in the form of a broadly syndicated U.S. dollar denominated term “B” loan that is secured on a pari passu basis with the Tranche B-5 Term Loans incurred pursuant to clause (i)(a) of the definition of “Maximum Incremental Facilities Amount” that matures earlier than one year after the Tranche B-5 Term Loan Maturity Date, only during the period commencing on the Amendment No. 6 Effective Date and ending on the date that is 12 months after the Amendment No. 6 Effective Date, if the ~~All-~~Applicable Margin for SOFR Loans in ~~Yield on~~ respect of such ~~Incremental~~ New Term Loans exceeds the ~~initial All-~~Applicable Margin for SOFR Loans in ~~Yield~~ respect of the then existing Tranche B B-5 Term Loans by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.75%, ~~then~~ the Applicable Margin for SOFR Loans in respect of the then existing Tranche B B-5 Term Loans shall ~~automatically~~ be ~~increased by~~ adjusted so that the ~~Yield Differential, effective upon~~ Applicable Margin in respect of the ~~making~~ then existing Tranche B-5 Term Loans that are SOFR Loans is equal to the Applicable Margin for SOFR Loans in respect of such ~~Incremental~~ New Term Loans ~~and~~ minus 0.75% (vthe “Tranche B-5 MFN Protection”), (iv) to the extent such terms and documentation are not consistent with the ~~terms of the Incremental~~ then existing Tranche B-5 Term Loans ~~are inconsistent with the terms set forth herein~~ (except ~~as set forth in~~ to the extent permitted by clause (i), (ii) ~~through~~ or (iviii) above), ~~such~~ they shall either (x) reflect market terms ~~shall~~ and conditions (as determined by the Borrowers in good faith) at the time of incurrence or issuance of New Term Loans (or the obtaining of a commitment with respect thereto) or (y) be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment~~ Agent (~~and~~ it being understood that, (1) to the ~~Incremental Revolving Loans thereunder)~~ extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be ~~implemented as an increase~~ required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the then-Latest Term Loan Maturity Date), (v) any New Term Loans may provide for the ability to participate (A) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 5.1 and (B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such New Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 5.2, (vi) New Term Loans may not be guaranteed by any Person which is not a Credit Party and (vii) if secured, any New Term Loans may not be secured by assets that do not constitute Collateral. For the avoidance of doubt, all parties to this Agreement hereby agree that the proviso to clause (iii) of this paragraph (d) does not apply with respect to any Tranche B-2 Term Loans and/or Tranche B-4 Term Loans (all of which such “MFN” protections have expired prior to the ~~Total~~ Amendment No. 6 Effective Date) and/or any Tranche B-6 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed) and/or any Tranche B-7 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed) and/or any Tranche B-8 Term Loans (all of which such “MFN” protection (if any) has expired and/or not been set and/or not been renewed). (e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be ~~on terms~~ identical to the ~~existing~~ Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise: (i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and of security with the Revolving Credit Loans and the Term Loans, (ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments, (iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans ~~thereunder~~with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, (iv) subject to the provisions of Section 2.1(e) and Section 3.12 to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.1(e) and Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series), (v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class, (vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date, (vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and (viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrowers and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the remaining weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans. (dix) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent ~~reasonably requested~~ that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any ~~other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion~~ of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.Lend

Appears in 1 contract

Sources: Credit Agreement (GoDaddy Inc.)

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments (it being agreed that the Borrower shall not be obligated to offer to any Lender the opportunity to participate in ~~an amount such~~ any Incremental Facility); provided, that, ~~after giving effect thereto,~~ the sum of the cumulative aggregate original amount of all the Incremental Commitments established at under this Section 2.23 and aggregate original amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) shall not, on the date of effectiveness of any Incremental Commitments under this Section 2.23 or ~~prior to~~ the date of issuance of any such ~~time does not~~ Alternative Incremental Facility Indebtedness, as the case may be, exceed ~~$100,000,000~~the Maximum Incremental Amount in effect on such date. ~~Such~~ Each such notice shall ~~set forth~~ 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 five (5) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term ~~Loan Commitments~~ Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (ivy) any Person that the Borrower proposes to become an Incremental Lender, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of ~~any request for~~ an Incremental ~~Term Loan Commitments~~Revolving Commitment, ~~whether~~ 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 ~~Incremental Term Loan Commitments are commitments~~ Issuing Bank or the Swingline Lender, as the case may be, would be required to ~~make additional Term Loans of any then outstanding Class or commitments~~ consent to ~~make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled~~ an assignment to ~~agree or decline to participate~~ such Person in ~~its sole discretion) or any Additional Lender~~accordance with Section 9.04(b)). (b) ~~It shall be a condition precedent to the effectiveness~~ The terms and conditions of any Incremental Revolving Commitment ~~that (i) no Default or Event~~ and Loans and other extensions of ~~Default~~ credit to be made thereunder shall ~~have occurred~~ 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 ~~continuing immediately prior to or immediately after giving effect to~~ treated as a single Class with such ~~Incremental Commitments~~Revolving Commitments and Loans; provided, that, (iiw) the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ maturity date of any Incremental ~~Loans)~~Revolving Commitments shall be no sooner than, ~~shall not exceed 2.75:1.00~~but may be later than, the Revolving Maturity Date, (~~iii~~x) the ~~representations~~ upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and ~~warranties set forth in Article III and in each~~ 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 ~~true~~ 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 ~~correct in all material respects (or in all respects, if qualified as to materiality) on~~ Subsidiaries that are Subsidiary Loan Parties. The terms and as conditions of ~~the date such~~ any Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments~~ Term Facility and the Incremental Term Loans ~~or Incremental Revolving Loans~~ to be made thereunder shall ~~comply with Section 2.25(c). (c)~~ be, except as otherwise set forth herein or in the applicable Incremental ~~Commitments shall be established pursuant~~ Facility Amendment, substantially identical to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ those of the Term Commitments and the Term Loans; provided, that, (i) the upfront fees, interest rates, call protection, mandatory prepayments and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders ~~and set forth in~~ providing the ~~applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any~~ relevant Incremental Term ~~Loans shall be no earlier than the Latest Maturity Date~~Commitments, (ii) except for Inside Maturity Accordion Indebtedness, the weighted average life to maturity of ~~the~~ any such Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of existing Term Loans with the longest remaining weighted average life to maturity at such time, (iii) except for Inside Maturity Accordion Indebtedness, any such Incremental Term Facility will mature no earlier than the Latest Maturity Date applicable to any Class of existing Term Loans at such time, (iv) the terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall not be materially more favorable, taken as a whole, to the lenders providing such Incremental Term Facility than the terms applicable to the existing Term Loans (as determined by Holdings in good faith), other than (A) (I) covenants or other provisions applicable only to periods after the Latest Maturity Date of any Class of existing Term Loans and (II) covenants or other provisions that are also for the benefit of 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, customary “most-favored-nation” protection, call protection, and an excess cash flow prepayment, in each case, which may be applicable solely with respect to such Incremental Term Facility (it being understood that to the extent an excess cash flow prepayment is required in connection with the establishment of an Incremental Term Facility, such excess cash flow mandatory prepayment shall be applied ratably to all then-~~outstanding Class of~~ 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) all Incremental Term Facilities shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations and (vi) no Incremental Term Facility shall be secured by any property or assets of Holdings 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. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Obligations. (c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by Holdings, the Borrower, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided, that, no Incremental Commitments shall become effective unless (i) subject to Section 1.05, no Event of Default shall have occurred and be continuing immediately before and after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) subject to Section 1.05, on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.18 in connection with such Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security~~ Commitments and the ~~borrower~~ related transactions under this Section 2.23 and ~~guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans,~~ (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans Borrower shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent an a certificate of a Financial Officer of the Borrower to the effect set forth in clauses (i) and (ii) above, together with calculations demonstrating (A) compliance with Section 2.23(a) above (and a calculation of the “Maximum Incremental ~~Assumption Agreement providing for~~ Amount” before and after giving effect to the establishment of such Incremental ~~Commitments,~~ Commitments and ~~such other documentation as the Administrative Agent shall reasonably specify to evidence~~ the Incremental ~~Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel~~ Facilities relating thereto) and ~~other documentation consistent~~ (B) that Holdings shall be in compliance with the ~~conditions~~ Financial Covenants set forth in Section ~~4.02~~6.11, ~~all to~~ calculated on a Pro Forma Basis as of the ~~extent reasonably requested by the Administrative Agent or the other parties to~~ date of establishment of such Incremental ~~Assumption Agreement~~Commitments and Incremental Facilities relating thereto (and, for the avoidance of doubt, assuming for such purposes that such Incremental Facilities are fully drawn). ~~The Administrative Agent shall promptly notify each Lender as to the effectiveness of each~~ Each Incremental ~~Assumption Agreement. Any Incremental Assumption Agreement~~ Facility Amendment may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this Section ~~2.25~~2.23. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~including any amendments necessary~~ (i) such Incremental Lender shall be deemed to ~~establish the Incremental Term Loan~~ be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Commitments, each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned~~ shall assign to each Incremental Revolving ~~Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Revolving Commitment, and each such Incremental Revolving ~~Credit~~ Lender ~~will automatically~~ shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Revolving Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each~~ all the Revolving ~~Credit Lender~~ Lenders (including ~~each~~ such Incremental Revolving ~~Credit Lender~~Lenders) ~~will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon~~ ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Credit~~ Commitment. (f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment ~~be prepaid~~ of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Borrower referred to in Section 2.23(a) and of ~~additional~~ 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 ~~Loans made hereunder so that~~ Commitments, of the Applicable Percentages of the Revolving ~~Loans are thereafter held by the Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the assignments required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~Section 2.23(e).

Appears in 1 contract

Sources: Credit Agreement (Trinet Group Inc)

Incremental Facilities. i. (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,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request an increase to the existing Revolving Facility Commitments (each such increase, ~~request~~ an “Incremental Revolving Facility Commitment”) or to the Term Loan A Facility Commitments (each such increase, an “Incremental Term Facility Commitment” and, together with the Incremental Revolving Facility Commitment, each an “Incremental Commitment”), in an aggregate principal amount, collectively, not to exceed U.S.$300 million. Any Borrowing under an Incremental Commitment shall be in an aggregate amount ~~such that, after giving effect thereto~~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 Loan A Loans or Revolving Facility Loans or a combination of Term Loan A Loans and Revolving Facility Loans (collectively, the ~~aggregate amount of~~ “Incremental ~~Commitments established at or prior to such time does not exceed $100,000,000~~Loans”). Such notice shall ~~set forth~~ specify the date (ian “Increased Amount Date”) on which the ~~amount of~~ Borrower proposes that the Incremental Commitments ~~being requested~~ shall be made available (and, in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans shall be made available), which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than five (ii5) Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective~~ the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent). The Borrower shall notify the Administrative Agent in -3- writing of the identity of each Lender or other financial institution (which in any event shall not be ~~less than 10 Business Days nor more than 60 days after~~ the ~~date~~ Borrower or an Affiliate of ~~such notice (or such longer or shorter period as~~ the Borrower) reasonably acceptable to the Administrative ~~Agent shall agree))~~Agent, ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ and ~~(iv)~~ in the case of any ~~request for~~ Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks (each, an “Incremental Revolving Facility Lender”, an “Incremental Term ~~Loan Commitments~~Lender”, ~~whether such~~ or generally, an “Incremental ~~Term Loan Commitments are commitments~~ Lender”, as applicable) to ~~make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek~~ whom the Incremental Commitments ~~from existing Lenders~~ have been (~~each~~ in accordance with the prior sentence) allocated and the amounts of ~~which shall be entitled~~ such allocations; provided that any Lender approached to ~~agree~~ provide all or ~~decline to participate~~ a portion of the Incremental 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 Term Facility Commitments, such new Loans in respect thereof (“Incremental Term Loans”) ~~or any Additional Lender. (b) It~~ shall be ~~a condition precedent to the effectiveness of any Incremental Commitment~~ made on such Increased Amount Date, provided that (i) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental ~~Commitments,~~ Commitments and Incremental Term Loans; (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties ~~set forth~~ contained in Article III and ~~in each~~ the other Loan ~~Document~~ Documents shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of the ~~date~~ Increased Amount Date, except to the extent that such ~~Incremental Commitments become effective (or if such representation~~ representations and ~~warranty relates~~ warranties specifically refer to ~~another~~ an earlier date, ~~such other date)~~ in which case they shall have been true and ~~(iv) the terms~~ correct in all material respects as of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreementearlier date; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental ~~Term~~ Loans ~~will~~ shall rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and of security with ~~respect~~ the Loans; (iv) such Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to ~~security~~ Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the ~~borrower~~ register, each of which shall be reasonably satisfactory to the Administrative Agent and ~~guarantors~~ subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental ~~Term~~ 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) any Incremental Loans shall be treated substantially the same as the ~~Borrower and Guarantors~~ existing Loans (in each case, including with respect to mandatory and voluntary prepayments); (viii) if the ~~Term~~ 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 Loans, (ivB) if such Incremental 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 Loans, being referred to herein as “OID”), the amount of such OID (based on an assumed four year weighted average life) and (C) any minimum Alternate Base Rate or Adjusted Eurodollar Rate applicable to such Incremental Loans) (the “All-~~in Yield on such~~ In Yield”) for any Incremental ~~Term Loans~~ Loan exceeds the ~~initial~~ then applicable All-in In Yield of for the ~~Tranche B~~ Term Loan A Loans or Revolving Facility Loans, as applicable, by more than 50 basis points (the ~~amount~~ excess of (A) such ~~excess above~~ All-In Yield for the Incremental Loans over (B) the All-In Yield for the Term Loan A Loans or Revolving Facility Loans, as applicable, plus 50 basis points being ~~referred to herein as~~ the relevant “~~Yield~~ Margin -4- Differential”), then ~~the~~ each Applicable Margin for the ~~Tranche B~~ Term Loan A Loans or Revolving Facility Loans, as applicable, for each adversely affected existing Facility shall automatically be increased by the ~~Yield Differential,~~ Margin Differential effective upon the making of ~~such~~ the Incremental ~~Term Loans~~ Loan; and (vix) except as otherwise provided in this clause (a), the terms and conditions applicable to Incremental Loans shall not be materially different from those of the Term Loan A Loans or Revolving Facility Loans, as applicable; provided that (A) the terms and conditions applicable to any tranche of Incremental Loans maturing after the Term Loan A Maturity Date or the Revolving Facility Maturity Date, 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 or the Revolving Facility Maturity Date, as applicable, and (B) the Incremental Loans may be priced differently than the existing applicable 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 ~~Term~~ Commitments and the Incremental Loans ~~are inconsistent with~~ evidenced thereby, and the ~~terms set forth herein (except as set forth in clause (i) through (iv) above)~~Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without the consent of any Lender. Notwithstanding the foregoing, ~~such terms~~ 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 the transactions contemplated by the Sixth Amendment; and (y) the Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the applicable Increased Amount Date, favorable written opinions of (x) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties, and (y) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Oklahoma counsel for the Loan Parties, (A) dated the applicable Increased Amount Date, (B) addressed to each Issuing Bank on the applicable Increased Amount Date, the Administrative Agent, the Collateral Agent and the Lenders, and (C) in form and substance reasonably satisfactory to the Administrative ~~Agent. Any~~ Agent and covering such matters relating to the Incremental ~~Revolving Credit Commitment (~~Commitments and the Incremental ~~Revolving~~ Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increaserequest, and each Loan Party hereby instructs its counsel to deliver such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceopinions.”

Appears in 1 contract

Sources: Credit Agreement

Incremental Facilities. ~~(a) The~~ Borrower ~~may,~~ may by written notice to ~~the~~ Administrative Agent ~~from time~~ elect to ~~time~~request prior to the Maturity Date, ~~request~~ the establishment of one or more incremental term loan Commitments (the “Incremental ~~Commitments in~~ Term Loan Commitments”), by an amount ~~such that, after giving effect thereto,~~ not in excess of the Incremental Debt Cap in the aggregate and not less than $10,000,000 in the case of each such increase (or such lesser amount of which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the Incremental Debt Cap and all such Incremental Term Loan Commitments ~~established at or~~ obtained prior to such ~~time does not exceed~~ date, together with all Incremental Debt outstanding under Section 10.2.1(n)), and integral multiples of $~~100,000,000~~5,000,000 in excess of that amount. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the ~~amount of~~ date (each, an “Increased Amount Date”) on which Borrower proposes that the Incremental Term Loan Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (~~Administrative Agent or such ~~longer or~~ shorter period of time as ~~the~~ consented to by Administrative Agent ~~shall agree))~~and (B) the identity of each Lender, Person that is an Eligible Assignee or other Person not then either a Lender or Eligible Assignee (~~iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or~~ each, an “Incremental Term Loan ~~Commitments and (iv~~Lender”) ~~in the case~~ to whom Borrower proposes any portion of ~~any request for~~ such Incremental Term Loan Commitments, ~~whether~~ as applicable, be allocated and the amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Term Loan Commitments ~~are commitments~~ in its sole discretion and any Lender or other Person approached to ~~make additional~~ 84 provide all or a portion of the Incremental Term ~~Loans of any then outstanding Class~~ Loan Commitments may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion, to provide an Incremental Term Loan Commitment; provided, further, that each Lender and other Person that 85 Borrower proposes to become an Incremental Term Loan Lender must be reasonably acceptable to Administrative Agent. Such Incremental Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that (1) ~~or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that~~ (i) as of such Increased Amount Date (A) if such Class of Incremental Term Loans is being requested in connection with a Permitted Acquisition, no Event of Default under Sections 12.1(a) or (h) has occurred or is continuing or would immediately result therefrom, and (B) otherwise, no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist as of such date, or immediately result from such funding; and (ii) both immediately before and after giving effect to ~~such Incremental Commitments, (ii)~~ the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ making of any Class of Incremental Term Loans), ~~shall not exceed 2.75:1.00, (iii)~~ the representations and warranties ~~set forth~~ of each Obligor in ~~Article III~~ the Loan Documents (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in ~~each other Loan Document~~ the Acquisition Agreement for such Permitted Acquisition) shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) (except for representations and warranties that expressly relate to an earlier date); (2) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the Incremental Term Loan Lender and Administrative Agent, and each of which shall be recorded in ~~all respects~~the Register and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 5.9; (3) Borrower shall make any payments required pursuant to Section 3.9 in connection with the Incremental Term Loan Commitments; and (4) Borrower shall deliver or cause to be delivered any legal opinions, ~~if qualified as to materiality)~~ mortgage modifications or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on ~~and as~~ an Increased Amount Date shall be, at the election of the ~~date~~ Administrative Agent (in consultation with the Borrower), designated as either part of the same Class of any existing Term Loans or a separate Class of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Class of Incremental Term Loans shall make a Loan to Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date~~Class, ~~such other date)~~ and (ivii) each Incremental Term Loan Lender of any Class of Incremental Term Loans shall become a Lender hereunder with respect to the ~~terms~~ Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto. Administrative Agent shall notify Lenders promptly upon receipt of ▇▇▇▇▇▇▇▇’s notice of each Increased Amount Date and in respect thereof the Class of Incremental Term Loan Commitments and the Incremental Term ~~Loans or~~ Loan Lenders of such Class of Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this AgreementTerm Loans. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Class shall be ~~determined by the Borrower and the Incremental Term Lenders and~~ as set forth herein or in the ~~applicable Incremental Assumption~~ Joinder Agreement~~; provided that~~ . In any event (i) the ~~final~~ weighted average life to maturity ~~date~~ of ~~any~~ all Incremental Term Loans of any Class shall be no ~~earlier~~ shorter than the ~~Latest Maturity Date, (ii) the~~ weighted average life to maturity of the Initial Term Loan or any other Class of Incremental Term Loans, (ii) the applicable Maturity Date of each Class of Incremental Term Loans shall be no shorter than the ~~remaining average life to~~ latest of the final maturity of the Initial Term Loans or any ~~then-outstanding~~ other Class of Incremental Term Loans, (iii) the Weighted Average Yield applicable to the Incremental Term Loans ~~will rank pari passu with (or junior to) the Tranche B Term Loans in right~~ of ~~payment and with respect to security~~ each Class shall be determined by Borrower and the ~~borrower~~ applicable new Lenders and ~~guarantors of~~ shall be set forth in each applicable Joinder Agreement; provided, however, that the Weighted Average Yield applicable to the Incremental Term Loans shall not be greater than the ~~same~~ applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the ~~Borrower and Guarantors~~ date of such calculation with respect to any Loan plus 0.50% per annum unless the interest rate with respect to such Loan is increased so as to cause the then applicable Weighted Average Yield under this Agreement on such Loan to equal the Weighted Average Yield then applicable to the Incremental Term Loans less 0.50%, (iv) all Incremental Term Loans shall rank pari passu in right 86 of payment and security with the Initial Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) ~~to the extent the~~ all other terms of the Incremental Term Loans ~~are inconsistent~~ and Incremental Term Loan Commitments, if not consistent with the terms ~~set forth herein~~ of the Initial Term Loan, must be reasonably acceptable to Administrative Agent, but in no event, directly or indirectly, shall the covenants 87 or other provisions applicable to any Incremental Term Loan be more restrictive, or impose a more burdensome condition, on Borrower or its subsidiaries, or its or their assets, properties, business or operations than are provided for with respect to the Initial Term Loans unless (~~except~~ in each case, as ~~set forth~~ certified by a Senior Officer of the Borrower in ~~clause~~ good faith) (A) the Lenders under the Initial Term Loan (or existing Incremental Term Loan) receive the benefit of the more restrictive terms (which, for avoidance of doubt, may be provided to them without their consent), (B) subject to clauses (i) through (ivvi) ~~above)~~in this paragraph, such terms ~~shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment~~ concern pricing (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunderincluding interest rates, rate floors, fees, OID or other fees)~~. (d) In connection with any Incremental Commitments~~, the ~~Borrower~~amortization schedule, ~~the Administrative Agent~~ commitment reductions, prepayments and ~~each~~ any prepayment premiums applicable ~~Incremental Lender shall execute and deliver~~ to ~~the Administrative Agent an Incremental Assumption Agreement providing for~~ such Incremental ~~Commitments, and~~ Term Loan or (C) such ~~other documentation as~~ terms apply only after the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all applicable Maturity Date (it being understood to the extent ~~reasonably requested by~~ that any financial maintenance covenant is added for the benefit of any such Incremental Term Loan, no consent shall be required from the Administrative Agent or ~~the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as~~ Lenders to the ~~effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect~~ extent that such ~~amendments to this Agreement and~~ financial maintenance covenant is also added for the ~~other Loan Documents as may be necessary or appropriate, in the reasonable opinion~~ benefit of the ~~Administrative Agent~~ Initial Term Loan and ~~the Borrower, to effect the provisions of this Section 2.25, including~~ any ~~amendments necessary to establish the~~ existing Incremental Term Loan ~~Commitments and~~ existing at the time such subsequent Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit CommitmentsLoan is incurred), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.and

Appears in 1 contract

Sources: Term Loan and Security Agreement (DXP Enterprises Inc)

Common use of Incremental Facilities Clause in Contracts