Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that: (A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap; (B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom; (C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available; (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility; (E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility); (F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party; (G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments; (H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment; (I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and (J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment. (c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender). (d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto. (e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or (ii) the establishment of Incremental Term Commitments (it being agreed that the Borrower shall not be obligated to offer to any Lender the opportunity to participate in any Incremental Facility”); provided, that, the sum of the cumulative aggregate original amount of all the Incremental Commitments established under this Section 2.23 and aggregate original amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) shall not, on the date of effectiveness of any Incremental Commitments under this Section 2.23 or the date of issuance of any such Alternative Incremental Facility Indebtedness, as the case may be, exceed the Maximum Incremental Amount in effect on such date. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Facility or Facilities involvedBorrower proposes to become an Incremental Lender, (ii1) the applicable Incremental Facility Closing Dateif such Person is not then a Lender, (iii) the applicable Borrower(s) must be an Eligible Assignee and (iv2) in the case of an Incremental Term Revolving Commitment, must be reasonably acceptable to the Administrative Agent, each Issuing Bank and the Swingline Lender (in each case, to the extent the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be, would be required to consent to an assignment to such Person in accordance with Section 9.04(b)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, substantially identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided, that, (w) the applicable maturity date of any Incremental Term Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (x) the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility, (y) all Incremental Revolving Commitments shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations and (z) no Incremental Revolving Commitments shall be secured by any property or assets of Holdings, the Borrower or any of their Subsidiaries other than the Collateral or be guaranteed by any Person other than Holdings and Subsidiaries that are Subsidiary Loan Parties. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, substantially identical to those of (x) if any Term Loans then exist, such existing Term Loans or (y) if no Term Loans then exist, the Revolving Commitments and Revolving Loans (with appropriate modifications to reflect nature of such Incremental Term Facility and the Incremental Term Loans to be made thereunder as term loans); provided, that, (i) the upfront fees, interest rates, call protection, mandatory prepayments and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) except for Inside Maturity Accordion Indebtedness, the weighted average life to maturity of any such Incremental Term Loans and (y) shall be no shorter than the Applicable Margin for such Incremental Term Loans; provided, that:
(A) remaining weighted average life to maturity of the aggregate principal amount (or committed amount, if applicable) Class of all Incremental existing Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
longest remaining weighted average life to maturity at such time (B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingor, in the case of Incremental Term Loans which are Term B Loans, the weighted average life to maturity of any Additional Credit Extension Amendment then-existing Class of Term B Loans with respect the longest remaining weighted average life to maturity at such time), (iii) except for Inside Maturity Accordion Indebtedness, any such Incremental Term Facility will mature no earlier than the Latest Maturity Date at such time (or, in the case of Incremental Term Loans which are Term B Loans, the latest maturity date then applicable to any then-existing Class of Term B Loans), (iv) the terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall not be materially more favorable, taken as a whole, to the lenders providing such Incremental Term Facility than (x) if any Term Loans then exist, the terms applicable to such existing Term Loans or (y) if no Term Loans then exist, the terms applicable to the Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)Revolving Loans (in each case as determined by Holdings in good faith), with other than (A) (I) covenants or other provisions applicable only to periods after the financial Latest Maturity Date at such time and (II) covenants set forth in Section 7.1, recomputed as or other provisions that are also for the benefit of the last day Lenders in respect of the most recently ended fiscal quarter of Loans and Commitments outstanding at the Parent Borrower for which financial statements are available;
time such Incremental Term Facility is incurred and (DB) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Term Facility;
, customary “most-favored-nation” protection, call protection, and mandatory prepayments, in each case, which may be applicable solely with respect to such Incremental Term Facility (Eit being understood that to the extent a mandatory prepayment is required in connection with the establishment of an Incremental Term Facility, such mandatory prepayment shall be applied ratably to all then-existing Term Loans; provided, that, a Financial Officer of Holdings shall have delivered a certificate to the Administrative Agent at least two (2) Business Days prior to the incurrence of such Incremental Term Facility (or such shorter period of time as may reasonably be agreed by the Administrative Agent), together with a summary of the material terms and conditions of such Incremental Term Facility, stating that Holdings has determined in good faith that such material terms and conditions satisfy the requirements set forth in this clause (iv), which determination shall be conclusive, (v) in the case of any Incremental Term Loans that are Term B Loans, such Incremental Term Loans that are Term B Loans may, to the extent so provided in the applicable Incremental Facility Amendment, specify whether (x) the weighted average life applicable Term B Lenders shall have any voting rights in respect of the Financial Covenant (it being agreed that if any Term B Loans are incurred at a time when a Class of Term B Loans already exists, and such subsequently incurred Term B Loans shall have such voting rights, all then outstanding Term B Loans shall also have similar voting rights) and (y) any breach of the Financial Covenant would result in a Default or Event of Default for such Term B Lenders prior to maturity an acceleration of the Revolving Commitments and/or Revolving Loans by the applicable Lenders in accordance with the terms hereof as a result of such breach (it being agreed that if any Term B Loans are incurred at a time when a Class of Term B Loans already exists, and such subsequently incurred Term B Loans shall have such a default, all then outstanding Term B Loans shall also have a similar default), (vi) all Incremental Term Facilities shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations and (vii) no Incremental Term Facility shall be no earlier secured by any property or assets of Holdings or any of their Subsidiaries other than the weighted average life Collateral or be guaranteed by any Person other than Holdings and Subsidiaries that are Subsidiary Loan Parties. Any Incremental Term Commitments established pursuant to maturity an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by Holdings, the Borrower, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided, that, no Incremental Commitments shall become effective unless (i) subject to Section 1.05, no Event of Default shall have occurred and be continuing immediately before and after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) subject to Section 1.05, on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the Initial Term Facility representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of customary high-yield bridge loans whichany such representation and warranty that expressly relates to a prior date, subject to customary conditions in which case such representation and warranty shall be so true and correct on and as of such prior date, (including no payment or bankruptcy event of default), would either automatically be converted into or iii) the Borrower shall make any payments required to be exchanged for permanent Indebtedness that does not made pursuant to Section 2.18 in connection with such Incremental Commitments and the related transactions under this Section 2.23 and (iv) the Borrower shall have delivered to the Administrative Agent a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect certificate of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect a Financial Officer of the Collateral with Borrower to the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise effect set forth in this clauses (i) and (ii) above, together with calculations demonstrating (A) compliance with Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower 2.23(a) above (and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments a calculation of the applicable Term Facility unless the Parent Borrower “Maximum Incremental Amount” before and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to the establishment of such Additional Credit Extension Amendment;
Incremental Commitments and the Incremental Facilities relating thereto) and (IB) that Holdings shall be in compliance with the Financial Covenant set forth in Section 6.11, calculated on a Pro Forma Basis as of the date of establishment of such Incremental Commitments and Incremental Facilities relating thereto (and, for the avoidance of doubt, assuming for such purposes that such Incremental Facilities are fully drawn). Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.23.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the Aggregate Revolving Commitment shall become be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment of any Series shall make a Lender under this Agreement pursuant loan to the Borrower in an Additional Credit Extension amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cg) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.23(e).
Appears in 3 contracts
Sources: Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders (including New Lenders) may from time occasions, by written notice to time agree the Administrative Agent, request the establishment of Incremental Commitments, provided that such Lenders shall make, obtain or increase the amount of their any Incremental Term Loans Commitments established hereunder shall not exceed the amount of additional Indebtedness permitted at the time such Incremental Commitments are established to be Incurred under Section 9.01(b)(1). Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under shorter period as may be agreed to by the Administrative Agent) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iii) the amount of the Incremental Commitments being requested (it being agreed that (A) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Commitment and (B) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and otherwise satisfy the requirements of Section 12.04(b)(i)).
(b) The terms and conditions of any Incremental Commitments and the Incremental Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility or Facilities involvedAgreement, identical to those of the Commitments and the Loans; provided that (i) if the Weighted Average Yield applicable to any Incremental Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield under the terms of this Agreement, as amended through the date of such calculation, with respect to Loans, then the Applicable Margin then in effect for Loans shall automatically be increased to the extent necessary to eliminate such excess, (ii) the applicable Average Life of any Incremental Facility Closing Date, Loans shall be no shorter than the remaining Average Life of the Loans and (iii) the applicable Borrower(s) and (iv) Maturity Date for any Incremental Loan shall not be earlier than the Final Maturity Date in effect on the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for date such Incremental Term Loans and (y) the Applicable Margin for such Loan is made. Any Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Commitments established pursuant to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable an Incremental Facility Activation DateAgreement that have identical terms and conditions, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Loans made thereunder, shall be designated as a separate Class of Incremental Commitments thereunder (and assuming, in the case Incremental Loans for all purposes of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;this Agreement.
(Dc) in no event The Incremental Commitments shall it be a condition effected pursuant to the effectiveness of, one or Borrowing under, any more Incremental Facility that any representation or warranty of any Loan Party be true Agreements executed and correct in all material respects, except and solely to the extent required delivered by the lenders Borrower, each Incremental Lender providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans Commitments and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments and the making of Loans thereunder, (Iii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date and (iii) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender (other than the Incremental Lenders party thereto), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) give effect to the extent such consent would be required for an assignment provisions of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)Section.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, a Lender (but only to the extent) necessary to reflect the existence and terms a Lender in respect of Commitments and Loans of the Incremental Term applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of a Lender (and a Lender in respect of Commitments and Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Class shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 5 to 2.08(a) and of the same extent applicable to effectiveness of any Incremental Commitments, in each case advising the initial Revolving Commitments and without any further amendment to this AgreementLenders of the details thereof.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time on or after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing aggregate Revolving Commitments (each such increase, a “Revolving Facility Increase”) and/or (B) an increase to the size of the existing Term Loan Facility and/or the establishment of one or more incremental term loan facilities to the Term Loan Facility (whether or not a separate tranche, an “Incremental Term Loan; each Incremental Term Loan is referred to individually as an “Incremental Term Facility” and together with any Revolving Facility Increase, collectively referred to as “Incremental Facilities”, and any such increased Revolving Commitmentsfacility or commitment increase, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableindividually, an “Incremental Facility”)) such that the aggregate amount of the Facilities, together with all such Incremental Facilities, does not exceed at any time $4,000,000,000. Each such notice shall specify the date on which the Borrower proposes that such Incremental Facilities shall be effective, which shall be a date not less than five (5) Business Days (or such lesser number of days as applicable, by executing and delivering the Administrative Agent shall agree) after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent, the Syndication Agent an Additional Credit Extension Amendment specifying (i) and/or their respective Affiliates shall use commercially reasonable efforts, with the amount assistance of such increase and the Facility Borrower, to arrange a syndicate of Lenders or Facilities involved, (ii) other Persons that are Eligible Assignees willing to hold the applicable requested Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, Facility; provided that (x) the amortization schedule for such any Lender approached to provide all or a portion of any Incremental Term Loans Facility may elect or decline, in its sole discretion, to participate in an Incremental Facility, and (y) the Applicable Margin for any Lender or other Person that is an Eligible Assignee to whom any portion of such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than allocated (each, an “Incremental Revolving Lender” or “Incremental Term Loan Lender”, as applicable) shall be subject to the weighted average life to maturity approval of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 Agent (such consent approval not to be unreasonably withheld, delayed withheld or conditioneddelayed), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental a Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving FacilityIncrease, each Borrower Issuing Bank (which approvals shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (andnot be unreasonably withheld), in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing required by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoSection 9.04(b).
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Invitation Homes Inc.), Revolving Credit and Term Loan Agreement (Invitation Homes Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time on or after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request an increase to the size of an existing Facility (including New Lenderseach such increase, a “Term Loan Increase”) may from time to time agree that such Lenders shall make, obtain and/or the establishment of one or increase the amount of their Incremental Term Loans or Revolving Commitments more incremental term loan facilities (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableeach, an “Incremental Term Loan; each Incremental Term Loan is referred to individually as an “Incremental Term Facility”); each Term Loan Increase and Incremental Term Facility are collectively referred to as a “Commitment Increase”) such that the aggregate amount of the Facilities as so increased, including all such Incremental Term Facilities, does not exceed at any time $950,000,000; provided, that each such Commitment Increase shall be in an aggregate principal amount of not less than $10,000,000. Each such notice shall specify the date on which the Borrower proposes that such Commitment Increase shall be effective, which shall be a date not less than five (5) Business Days (or such lesser number of days as applicable, by executing and delivering the Administrative Agent shall agree) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying (i) Agent. The Administrative Agent, the amount Arrangers, the Syndication Agents and/or their respective Affiliates shall use commercially reasonable efforts, with the assistance of such increase and the Facility Borrower, to arrange a syndicate of Lenders or Facilities involved, (ii) other Persons that are Eligible Assignees willing to hold the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, requested Commitment Increase; provided that (x) the amortization schedule for such Incremental Term Loans any Lender approached to provide all or a portion of any Commitment Increase may elect or decline, in its sole discretion, to participate in a Commitment Increase, and (y) the Applicable Margin for any Lender or other Person that is an Eligible Assignee to whom any portion of such Commitment Increase shall be allocated (each, an “Incremental Term LoansLoan Lender”) shall be subject to the approval of the Borrower and the Administrative Agent (such approval not to be unreasonably withheld or delayed), to the extent required by Section 9.04(b).
(b) The Administrative Agent and the Borrower shall thereafter determine the effective date (each, an “Increased Amount Date”) and the final allocation of such Commitment Increase among the Lenders and Eligible Assignees; provided, thatprovided that the effectiveness of any Commitment Increase and the availability of any borrowings under any such Commitment Increase on the Increased Amount Date shall be subject to the satisfaction of the following conditions precedent:
(Ai) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to such Commitment Increase and borrowings and the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting use of proceeds thereof thereof, no Event of Default shall exist and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are availablebe continuing;
(Dii) the representations and warranties made or deemed made by the Borrower in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects, respects on the Increased Amount Date of such Commitment Increase except and solely to the extent required that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) or are qualified by materiality (in which case such representations and warranties shall be true and correct in all respects) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents;
(iii) payment by the lenders providing Borrower to the Joint Lead Arrangers/Joint Bookrunners and/or the Administrative Agent, for its own account and/or for the benefit of the Incremental Term Loan Lenders participating in such Commitment Increase, of any applicable fees and expenses required to be paid as of the applicable Increased Amount Date;
(iv) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(A) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (x) all corporate or other necessary action taken by the Borrower to authorize such Commitment Increase and (y) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Commitment Increase;
(B) a certificate of the Borrower dated as of the applicable Increased Amount Date signed by an Authorized Officer thereof, certifying that, before and after giving effect to such Incremental Term Facility, the conditions in clauses (i) and (ii) above have been satisfied;
(C) if requested by the Administrative Agent, a customary opinion of counsel to the Borrower and the Guarantors (which may be in substantially the same form as delivered on the Effective Date and may be delivered by internal counsel of the Borrower), and addressed to the Administrative Agent and the Lenders;
(D) if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lender;
(E) a joinder agreement in form and substance reasonably satisfactory to the weighted average life Administrative Agent and its counsel (a “New Lender Joinder Agreement”) for each Eligible Assignee that is not an existing Lender and is becoming a Lender in connection with such Commitment Increase, duly executed by the Borrower and each such Eligible Assignee and acknowledged and, if required pursuant to maturity Section 9.04(b), consented to in writing by the Administrative Agent; and
(F) written confirmation from each existing Lender, if any, participating in such Commitment Increase of the amount of New Term Loans to be provided by it;
(v) any Commitment Increase that constitutes an increase in an existing Facility shall be on the same terms as the Class or tranche of the Facility being increased (in each case, other than pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions or additional terms applicable only to periods after the Maturity Date);
(vi) all incremental commitments and loans provided as part of a newly established Incremental Term Facility shall be, subject to Section 9.02(b)(iv) and clauses (v), (x) and (z) of the second proviso to Section 9.02(b), on terms agreed to by the Borrower and the Lenders providing such Incremental Term Facility; provided that (i) if the terms of such Incremental Term Facility (other than final maturity) are not the same as the terms of a then existing tranche of the Term Loan Facility, the operational, technical and administrative provisions of such Incremental Term Facility shall be no earlier than on terms reasonably acceptable to the weighted average life to maturity of the Initial Term Facility Administrative Agent, and (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fii) all Incremental Term Loans and any Revolving Loans made in respect of under each Incremental Revolving Commitments Term Facility shall rank pari passu in right of payment and right of security in respect of the Collateral with the all other Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be treated substantially the same as (and in any event no more favorably than) all other Term Loans. Incremental Term Facilities may be made hereunder pursuant to a Person that is not supplement, an amendment or an amendment and restatement (an “Incremental Term Facility Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Term Loan Lender (including any Eligible Assignee becoming a party to this Agreement as an Incremental Term Loan Party;
(GLender) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in Section 9.02, the Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this AgreementAgreement and the other Loan Documents as may be necessary or appropriate, each in the reasonable opinion of the parties hereto hereby agrees thatAdministrative Agent, to effect the provisions of this Section 2.04. Each Incremental Term Facility will be on such terms (including as to amortization and maturity) as are agreed to by the Borrower and each Incremental Term Loan Lender with respect to such Incremental Term Facility Closing but all New Term Loans under any such Incremental Term Facility will in any event mature on the Maturity Date; and
(vii) upon the reasonable request of any Lender or any Eligible Assignee participating in such Incremental Term Facility made at least ten (10) Business Days prior to the applicable Increased Amount Date, this Agreement the Borrower shall have provided to such Lender or Eligible Assignee, and such Lender or Eligible Assignee shall be amended to reasonably satisfied with, the extent (but only to documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent Act and the Parent Borrower and furnished Beneficial Ownership Regulation, if applicable, in each case at least five (5) Business Days prior to the other parties heretosuch Increased Amount Date.
(ec) The Closing [Intentionally omitted].
(d) On any Increased Amount Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitmentswhich any Commitment Increase is effected, subject to the satisfaction of the foregoing terms and conditions and the conditions set forth in Section 5 4.02, each Incremental Term Loan Lender participating in such Commitment Increase shall make a Loan to the same extent applicable Borrower (a “New Term Loan”) in an amount equal to its allocated share of such Commitment Increase.
(e) On each Increased Amount Date, the Administrative Agent shall notify the Lenders of the occurrence of the Incremental Term Facility effected on such Increased Amount Date, the amount of the Incremental Term Facility and the amount of the Incremental Term Commitment of each Term Loan Lender as a result thereof.
(f) The upfront fees payable to the initial Revolving Commitments Incremental Term Loan Lenders with respect to any Incremental Term Facility shall be determined by the Borrower and such Incremental Term Loan Lenders.
(g) Subject to the foregoing, the Borrower, the Incremental Term Loan Lenders participating in any Incremental Term Facility and the Administrative Agent may, without the consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to such Incremental Term Facility and the provisions of this Section 2.04.
(h) This Section 2.04 shall supersede any provisions in Section 2.18(c) or 9.02(b) to the contrary.
Appears in 2 contracts
Sources: Term Loan Agreement (Invitation Homes Inc.), Term Loan Agreement (Invitation Homes Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
; (B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Amendment No. 4 (Somnigroup International Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to each of the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall be true and correct in all respects) (x) with respect to Incremental Term Loans being incurred to finance a Limited Conditionality Acquisition, except as of the date of execution and solely to delivery of the extent required applicable acquisition, merger or similar agreement governing such acquisition (provided that, if agreed by the lenders Lenders providing such Incremental FacilityTerm Loans, the only representations and warranties that shall be required to be true and correct shall be those as are customarily required to be so true and correct in an acquisition subject to limited conditionality (which representations and warranties shall be required to be true and correct in all material respects as of the applicable Incremental Facility Activation Date, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be required to be so true and correct in all material respects as of such earlier date)) or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments (or Revolving Loans in respect thereof) pursuant thereto), in each case, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date;
(E) the weighted average life to maturity of any Incremental Term Facility (other than the Specified Incremental Loans) shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Amendment and Restatement Effective Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Type or Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Type or Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower may, by written notice to the Administrative Agent and any one or more Lenders each Lender (including New Lenders) may from time with a copy to time agree that such Lenders shall makethe Collateral Agent), obtain or request, prior to the last day of the Revolving Period, an increase to the amount of their Incremental Term Loans or Revolving existing Commitments (any such increased Revolving increase, the “New Commitments, “Incremental Revolving Commitments” ”) by an amount not to exceed $400,000,000 (and the sum of the existing Commitments and any facility under which New Commitments shall not exceed $1,000,000,000 in the aggregate). Each such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying notice shall specify (i) the amount of such increase and the Facility or Facilities involvedNew Commitment, (ii) the applicable Incremental Facility Closing date (each, an “Increased Amount Date, ”) on which the Borrower proposes that the New Commitments shall be effective and approved in writing by the Administrative Agent and (iii) the identity of each Lender or other Person (each, an “Increasing Lender”) to whom the Borrower proposes any portion of such New Commitments be allocated and the amounts of such allocations (if then known); provided that any New Commitment shall first be offered to each existing Lender (pro rata) for a period of seven (7) Business Days prior to offering to any Person that is not an existing Lender. Such New Commitments shall become effective as of such Increased Amount Date if the Administrative Agent, the Required Lenders and each Lender whose Commitment is being increased thereby has consented thereto in their respective sole discretion and subject to any internal approvals; provided that (A) no Unmatured Event of Default, Event of Default or Borrowing Base Deficiency shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (B) the New Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender (if applicable), or one or more Joinder Supplements for any new Lender executed and delivered by the Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the Register; (C) the Borrower shall pay any applicable Borrower(srequired fees in connection with the New Commitments; (D) the Borrower shall deliver or cause to be delivered any legal opinions or other customary closing documents (substantially consistent with the documents set forth in Section 3.01) reasonably requested by Administrative Agent or an Increasing Lender in connection with any such transaction; and (ivE) the effectiveness of any allocation of New Commitments to a non-Lender shall be subject to (i) the prior written consent of the Administrative Agent and (ii) the Collateral Agent’s receipt of all documentation necessary for purposes of compliance with the applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Money Laundering Laws.
(b) On any Increased Amount Date on which New Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the Increasing Lenders, and each of the Increasing Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Advances Outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances will be held by existing Lenders and Increasing Lenders ratably in accordance with their Commitments after giving effect to the addition of such New Commitments to the Commitments, (ii) each New Commitment shall be deemed, for all purposes, a Commitment and each Advance made thereunder (a “New Advance”) shall be deemed, for all purposes, an Advance and (iii) each new Lender shall become a Lender with respect to the Commitments and all matters relating thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the New Commitments and the Increasing Lenders and (ii) in the case of Incremental Term Loanseach notice to any Lender, (w) the applicable Incremental Term Maturity Daterespective interests in such ▇▇▇▇▇▇’s Advances, (x) in each case subject to the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:assignments contemplated by this Section 2.20.
(Ad) The terms and provisions of the aggregate principal amount (New Advances shall be identical to the Advances. Each Assignment and Acceptance or committed amounteach Joinder Supplement, if as applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with may, without the aggregate principal amount consent of any Permitted Incremental Equivalent Debtother Lenders, shall not exceed effect such amendments to this Agreement and the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition other Transaction Documents as may be necessary or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingappropriate, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent opinion of the Administrative Agent, (x) each increase effected pursuant and consented to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), to effect the provisions of this Section 2.20. The effectiveness of any New Commitments shall be reasonably satisfactory to the Administrative Agent and, in the case of conditioned upon any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed such amendment being entered into by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall make, obtain one or increase more increases in the amount of their Incremental Term Loans or the Revolving Commitments of any Class (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Commitment Increase”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term LoansCommitments, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
provided that (A) the aggregate principal amount (or committed amount, if applicable) of all the Incremental Revolving Commitment Increases established hereunder shall not exceed $25,000,000 and (B) the aggregate amount of all the Incremental Term Loans Commitments and all Incremental Revolving Commitments, together with Commitment Increases established hereunder shall not exceed the difference between (1) $100,000,000 and (2) the aggregate principal amount of any Permitted Secured Indebtedness incurred after the Effective Date. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Equivalent DebtRevolving Commitment Increases or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not exceed less than 10 Business Days (or such shorter period as may be agreed to by the Incremental Cap;
Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) with respect any Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, Commitment Increase or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichCommitment may elect or decline, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects , to provide Commitments under an such Incremental Facility Revolving Commitment Increase or Incremental Term Commitments, (iy) to the extent such consent would Borrower shall not be required for to approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the Borrower proposes to become a Lender under any Incremental Term Commitment or Incremental Revolving Commitment Increase, if such Person is not then a Lender, must be an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall Eligible Assignee and must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansCommitment Increase, the each Issuing Lenders Bank and the Swingline Lender Lender).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that the interest margin or commitment fees applicable to any Incremental Revolving Commitment Increase may exceed the interest margin or fees payable with respect to the Revolving Loans and/or Revolving Commitments pursuant to the terms of this Agreement, as amended through the date of such calculation, in which case the Applicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case as in effect for the other Revolving Loans and Revolving Commitments, shall be automatically increased to eliminate such excess. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be set forth in the applicable Incremental Facility Agreement and may be different to those of the Term Commitments and the Term Loans (provided that, except with respect to matters contemplated by clauses (i), (ii) and (iii) below or customary for a “Term B” institutional loan tranche, any differences shall become a Lender under this Agreement be reasonably satisfactory to the Administrative Agent); provided that (i) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Terms Loans, (ii) no Incremental Term Loan Maturity Date shall be earlier than the Initial Term Maturity Date and (iii) any Incremental Term Loan shall rank pari passu or junior in right of payment and of security with the Initial Term Loans and shall be secured only by the Collateral securing the Obligations. Any Incremental Term Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) Unless otherwise agreed The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Term Commitments or Incremental Revolving Commitment Increase, as the case may be, and the Administrative Agent; provided that no Incremental Term Commitments or Incremental Revolving Commitment Increases shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments or Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to such Incremental Revolving Commitment Increase or Incremental Term Loan Commitments and the making of Loans pursuant thereto (and assuming that the amount of any Incremental Revolving Commitment Increase is fully drawn), the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13, recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower for which financial statements shall have been delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the Pro Forma Financial Statements) and (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Term Commitments or Incremental Revolving Commitment Increase and the related transactions under this Section. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, on each to give effect to the provisions of this Section, provided that to the extent that any term of any such amendment could not be approved as an amendment of this Agreement by the Lenders providing such Incremental Term Commitments voting as a single Class without the approval of any other Lender, such amendment will be subject to the approval of the requisite Lenders required under this Agreement.
(d) Upon the effectiveness of an Incremental Term Commitment or Incremental Revolving Commitment Increase of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment Increase, (A) if the applicable Lender does not already have a Revolving Commitment, such Incremental Revolving Commitment Increase shall constitute the Revolving Commitment of such Lender as provided in the Incremental Facility Closing Date Agreement applicable to such Incremental Revolving Commitment Increase, (B) if the applicable Lender already has a Revolving Commitment, the Revolving Commitment of such Lender shall be increased as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase and (C) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment Increase, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment Increase, the Revolving Exposure of the Revolving Lender making such Incremental Revolving Commitment Increase, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitment Increase, each Revolving Lender shall assign to each Revolving Lender making such Incremental Revolving Commitment Increase, and each such Revolving Lender making such Incremental Revolving Commitment Increase shall purchase from each Revolving Lender, at the principal amount thereof (together with respect accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving FacilityCommitment Increase.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the amount effectiveness of any Incremental Term Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitment Increase, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Costar Group Inc), Credit Agreement (Costar Group Inc)
Incremental Facilities. (a) The Parent At any time after the Closing Date, the Borrower and/or any Additional Borrower and any may by written notice to the Administrative Agent elect to request (i) prior to the Latest Revolving Credit Maturity Date, one or more Lenders (including New Lenders) may from time increases to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Credit Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan facilities, which may take the form of an increase to any then-existing term loan facility (an “Incremental Term Loan Facility”; the commitments in respect thereof, the “Incremental Term Loan Commitments” and, together with the Incremental Revolving Credit Commitments, the “Incremental Loan Commitments”). Each Incremental Revolving Credit Commitment and any facility under Incremental Term Loan Commitment shall be in an aggregate principal amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such Incremental Loan Commitments obtained on or prior to such date). Each such notice shall (I) specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five Business Days after the date on which such Incremental Term notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (B) the identity of each Lender or other Person that is a Person that would be permitted to be an assignee of the Loans or Incremental Revolving Commitments are made availablepursuant to Section 13.6(b) (each, an “Incremental FacilityRevolving Credit Lender” or “Incremental Term Loan Lender,” as applicable, and together, the “Incremental Lenders”)) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, by executing be allocated, and delivering to (II) may also provide the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount proposed amounts of such increase and allocations; provided that (x) any Lender approached to provide all or a portion of the Facility Incremental Revolving Credit Commitments or Facilities involvedIncremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment (ii) the applicable it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Facility Closing DateRevolving Credit Commitment or Incremental Term Loan Commitment), (iii) the applicable Borrower(s) and (ivy) in the case of Incremental Term LoansRevolving Credit Commitments, the Administrative Agent and the Letter of Credit Issuer shall have consented (wsuch consent not to be unreasonably withheld or delayed) the applicable to such Person’s providing such Incremental Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments to such Person. Such Incremental Revolving Credit Commitments or Incremental Term Maturity Loan Commitments shall become effective as of such Increased Amount Date, ; provided that (x1) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing shall exist on such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and Increased Amount Date after giving effect to any Additional such Incremental Revolving Credit Extension Amendment Commitments or Incremental Term Loan Commitments, as applicable, (including 2) after giving effect to the making of any Incremental Term Loans or effectiveness of Incremental Revolving Commitments pursuant thereto)Credit Commitments, no Default all representations and warranties made by any Credit Party contained herein or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional other Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event Documents shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of such Increased Amount Date (except where such representations and warranties expressly relate to an earlier date, except in which case such representations and solely warranties shall have been true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects) as of such earlier date), (3) the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the extent Borrower, the Incremental Revolving Credit Lenders or Incremental Term Loan Lenders, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and (4) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Incremental Lenders providing such Incremental Loan Commitments and required by the lenders providing applicable Joinder Agreement in connection with any such transaction. Notwithstanding anything to the contrary in this Section 2.14 or any other provision of any other Credit Documents, if the proceeds of any Loans made pursuant to any Incremental Loan Commitments are intended to be applied to finance a Permitted Acquisition or any other acquisition or Investment permitted under the Credit Documents, the calculation of the Maximum Incremental Facilities Amount and the determination as to the Borrower’s compliance with clauses (1) and (2) of the second proviso of this Section 2.14(a), shall be subject, in each case, to the Borrower’s right to make an LCT Election with respect to any Limited Condition Transaction, in which case, Section 1.12(b) shall apply; provided that (x) there shall be no Event of Default under Sections 11.1 and 11.5 (with respect to the Borrower) on the date of Borrowing of such Incremental Facility;Loans, and (y) the conditions applicable to the availability of Loans pursuant to such Incremental Loan Commitments shall include customary “limited conditionality” or “certain funds” conditionality provisions.
(Eb) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected through an increase to any existing Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (a) each of the relevant Revolving Credit Lenders shall assign to each of the Incremental Revolving Credit Lenders, and each of the Incremental Revolving Credit Lenders shall purchase from each of the relevant Revolving Credit Lenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by such existing Revolving Credit Lenders and Incremental Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Credit Lender shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum assignment, borrowing and prepayment requirements in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(c) Any Incremental Term Loans effected through the establishment of one or more new Term Loans made on an Increased Amount Date shall be designated a separate Class of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class (it being understood that any Incremental Term Loan Facility may provide for delayed draw term loans to be made at a later date), and (ii) each Incremental Term Loan Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, Incremental Term Loans may, subject to clause (e) below, have identical terms to the Initial Term Loans (or any other then-existing Class of Term Loans) and be treated as the same Class as the Initial Term Loans (or any other then-existing Class of Term Loans).
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the weighted average life Class of Incremental Revolving Credit Commitments and the Incremental Revolving Credit Lenders of such Class or the Class of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Class, as applicable, and (z) in the case of each notice to maturity any Revolving Credit Lender with respect to an increase in the Revolving Credit Commitments, the respective interests in such Revolving Credit Lender’s Revolving Credit Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.14.
(e) The terms and provisions of any Incremental Term Facility Loans and Incremental Term Loan Commitments or any Incremental Revolving Credit Commitments, as the case may be, of any Class shall be as agreed between the Borrower and the Incremental Term Loan Lenders or Incremental Revolving Credit Lenders, as applicable, providing such Incremental Term Loans and Incremental Term Loan Commitments or such Incremental Revolving Credit Commitments; provided that to the extent such terms and provisions are not consistent with the terms and provisions of the then existing Term Loans or Revolving Credit Commitments, as applicable (except as permitted by clauses (ii), (iii), (iv), and (v) below), such terms and provisions shall not be more restrictive than the terms and provisions applicable to such existing Term Loans or Revolving Credit Commitments, as applicable, unless (x) the Lenders under such existing Term Loans or Revolving Credit Commitments, as applicable, receive the benefit of such more restrictive terms, (y) any such provisions are applicable only after the Latest Term Loan Maturity Date or Latest Revolving Credit Maturity Date, as applicable, at such time or (z) such provisions are otherwise reasonably satisfactory to the Administrative Agent (which additional terms shall, notwithstanding anything to the contrary in Section 13.1, apply automatically to this agreement without the consent of any Lender, the Letter of Credit Issuer or, in the case of clause (x) or (y) of this paragraph (e), the Administrative Agent). In any event:
(i) any Incremental Revolving Credit Commitments shall have the same terms and ranking as the Revolving Credit Commitments prior to the Increased Amount Date (as such terms may be modified in accordance with the immediately preceding proviso);
(ii) the Weighted Average Life to Maturity of all Incremental Term Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (except by virtue of amortization or prepayment of the Initial Term Loans prior to the time of such incurrence);
(iii) the Maturity Date of any Class of the Incremental Term Loans shall be no earlier than the weighted average life to maturity of the Initial Term Facility Loans;
(except iv) the Incremental Term Loans may share ratably in the case right of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than prepayment with the Initial Term FacilityLoans pursuant to Section 5.1 or 5.2 or otherwise; provided that the Incremental Term Loans may, as the Borrower and the Incremental Term Loan Lenders may determine in their sole discretion, be afforded lesser payments;
(v) the Effective Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the Effective Yield with respect to such Incremental Term Loans shall not be greater than the Effective Yield with respect to the then existing Initial Term Loans, plus 50 basis points per annum unless the interest rate with respect to the Initial Term Loans is increased so as to cause the then applicable Effective Yield on the Initial Term Loans to equal the Effective Yield then applicable to the Incremental Term Loans minus 50 basis points (this proviso to this clause (v), the “MFN Protection”);
(Fvi) all (x) the liens securing the Incremental Term Loans will rank pari passu with the liens securing the Initial Term Loans and any Revolving (y) the Incremental Term Loans made in respect of Incremental Revolving Commitments shall have the same guarantees as, and will rank pari passu in right of payment and right of security in respect of with, the Collateral with the existing Initial Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;Loans.
(Gf) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Each Joinder Agreement may, all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agentany other Lenders, (x) each increase effected pursuant effect such amendments to this paragraph shall be in a minimum amount Agreement (including the imposition of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, “call protection” on existing Term Loan tranches in the case of any Incremental Revolving Loans, the Issuing Lenders increase thereto) and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional other Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (andDocuments as may be necessary, in the case reasonable opinion of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower to effect the provision of this Section 2.14, and furnished this Section 2.14 shall supersede any provisions of Sections 5, 13.8(b) or 13.1 to the other parties heretocontrary.
(eg) The Closing Date Incremental Term Loans, the Incremental Term Loan Commitments and the Incremental Revolving Credit Commitments extended or established pursuant to this Section 2.14 shall constitute Loans and Commitments under, and shall be provided on entitled to all the Closing Date as benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantee and security interests created by the Security Documents. The Credit Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien granted by the Security Documents continues to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Incremental Term Loans or any such Incremental Term Loan Commitments and Incremental Revolving Credit Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Del Frisco's Restaurant Group, Inc.), Credit Agreement (Del Frisco's Restaurant Group, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower and any time, on one or more Lenders occasions pursuant to an Incremental Facility Agreement (including New Lendersi) may from time to time agree that such Lenders shall make, obtain add one or more new tranches of term facilities and/or increase the principal amount of their Incremental the Tranche B-1 Term Loans or any Additional Term Loans by requesting new term loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving “cash-flow” facilities and/or increase the aggregate amount of Commitments of any existing Class of Incremental Revolving Commitments (any such increased new tranche or increase, an “Incremental Revolving CommitmentsFacility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving CommitmentsLoans” and and, together with any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable “Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans”); provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with provided that the aggregate principal amount of any Permitted all Incremental Equivalent Debt, Facilities incurred after the Third Amendment Effective Date shall not exceed the Incremental Cap;; provided, further, that:
(Bi) no Incremental Commitment may be less than $5,000,000,
(xii) except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Facility or Incremental Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) no Incremental Revolving Facility will mature earlier than any then-applicable Latest Revolving Loan Maturity Date or require any scheduled amortization or mandatory commitment reduction prior to such Maturity Date,
(v) the Effective Yield applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided that in the case of any Incremental Term Facility which are pari passu with the Initial Term Loans in right of payment and with respect to security, such Effective Yield applicable thereto will not be more than 0.50% higher than the Effective Yield applicable to the Class of Initial Term Loans denominated in the same currency as such Incremental Term Facility unless the Applicable Rate with respect to such Initial Term Loans is adjusted to be equal to the Effective Yield with respect to the relevant Incremental Term Facility, minus 0.50%,
(vi) the final maturity date with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by shall be no earlier than the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as Latest Term Loan Maturity Date at the time of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;incurrence thereof,
(Cvii) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect Weighted Average Life to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity Maturity of any Incremental Term Facility shall be no earlier shorter than the weighted average life remaining Weighted Average Life to maturity Maturity of the Initial then-existing tranche of Term Loans (without giving effect to any prepayments thereof),
(viii) (A) any Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall may rank pari passu with or junior to any then-existing tranche of Term Loans in right of payment and right pari passu with or junior to any then-existing tranche of Term Loans with respect to security in respect of or may be unsecured (and to the Collateral extent the relevant Incremental Facility is pari passu with or subordinated to the Term Loans in right of payment or security and the Revolving Loans and none of the obligors or guarantors with respect thereto documented in a separate agreement, it shall be a subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person that which is not a Loan Party;Party or (y) secured by any assets other than the Collateral,
(GA) except any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security shall be made on a pro rata basis with such existing Term Loans and (B) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall be made on a junior basis with respect to pricing such existing Term Loans (and fees all other then-existing Additional Term Loans requiring ratable prepayment), except, in each case, that the Borrower and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(x) except as otherwise set forth agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Section 2.25(a)Agreement, no Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility,
(xi) except as otherwise required or permitted in clauses (v) through (ix) above, all other terms of any Incremental Term Facility, if not consistent with the applicable existing terms of the Initial Term FacilityLoans, shall be determined between reasonably satisfactory to the Parent Borrower and the lenders for Administrative Agent (it being understood that (x) any terms which are not consistent with the terms of the Initial Term Loans and are applicable only after the then-existing Latest Term Loan Maturity Date shall be deemed satisfactory to the Administrative Agent and (y) terms contained in such Incremental Term Facility that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and reasonably are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Agreement) shall be deemed satisfactory to the Administrative Agent; provided that each ),
(xii) the proceeds of any Incremental Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement,
(xiii) on the date of the making of any Incremental Term Facility shall share ratably Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of Section 2.08 or 2.13, such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the terms hereof otherwise applicable to same type with the Revolving Facility and same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Term Loans will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional Credit Extension Amendment;
(I) without the consent Term Loans, as applicable, of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount same type with the same Interest Period of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Daterespective Class; and
(Jxiv) at no Lender time shall have there be more than three separate Maturity Dates in effect with respect to any obligation to participate in existing Additional Revolving Facility at any increase described in this paragraph unless it agrees to do so in its sole discretiontime.
(b) Any New Lender Incremental Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Lender”); provided that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 Administrative Agent shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided further that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iv) the Administrative Agent shall have received a certificate of the Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(x) above has been satisfied.
(e) To the extent the Borrower elects to implement any Incremental Revolving Facility, then notwithstanding any other provision of this Agreement to the contrary, the Borrower shall be permitted (without the consent of any Term Lender) to amend the terms of this Agreement pursuant to an amendment hereto (or an amendment and restatement hereof), in form and substance reasonably satisfactory to the Administrative Agent andAgent, in order to appropriately incorporate revolving facility provisions, including those relating to (i) conditions to borrowing, payments, prepayments, purchases of participations and reallocation mechanisms, letter of credit, swingline and/or other subfacilities, (ii) mechanisms to allow for additional Incremental Revolving Facilities (e.g. pro rata treatment and exceptions to such pro rata treatment upon the case maturity of any such Incremental Revolving Facility), (iii) tranche voting by revolving lenders with respect to conditions precedent to the making of revolving loans, any financial covenant required in connection with any Incremental Revolving Loans, Facility and definitions relating to the Issuing foregoing and (iv) consent by any issuing bank or swingline lender to matters affecting its rights or obligations in such capacity. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any other amendments to this Agreement and the Swingline Lender and (ii) shall become a Lender under this Agreement other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended pursuant to an Additional Credit Extension Amendmentthis Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.22.
(cf) Unless otherwise agreed by To the Administrative Agent, on each extent the provisions of clause (a)(xiii) above require that Term Lenders making new Incremental Facility Closing Date with respect Term Loans add such Incremental Term Loans to the Revolving Facility, each Borrower shall borrow Revolving then outstanding borrowings of LIBO Rate Loans under of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount respective Class of each Type of Loan of such Borrower (and, in the case of Eurocurrency Initial Term Loans or Additional Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the other Lenders in respective Class and which will end on the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration last day of the then-current such Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(dg) Notwithstanding anything to the contrary in this AgreementSection 2.22 or in any other provision of any Loan Document, each if the proceeds of the parties hereto hereby agrees that, on each any Incremental Facility Closing Dateare intended to be applied to finance an acquisition and the Lenders or Additional Lenders providing such Incremental Facility so agree, this Agreement the availability thereof shall be amended subject to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans customary “SunGard” or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto“certain funds” conditionality.
(eh) The Closing Date Incremental Revolving Commitments This Section 2.22 shall be provided on the Closing Date as Incremental Revolving Commitments, subject supersede any provision in Section 2.18 or 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (PQ Group Holdings Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) Representative may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering written notice to the Administrative Agent elect to request the establishment of one or more increases in Commitments of any Class (the “Incremental Revolving Credit Commitments”), by an Additional aggregate amount not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time) and in a multiple of $100,000 in excess thereof. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Credit Extension Amendment specifying Commitments shall be effective. The Borrower Representative may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment, and the Borrower Representative shall have no obligation to approach any existing Lender to provide any Incremental Revolving Credit Commitment. If the existing Lenders approached by the Borrower Representative (if any) are unwilling to increase their applicable commitments by an amount equal to the requested Incremental Revolving Credit Commitments, the Administrative Agent, at the request of and in consultation with Borrower Representative, will use its commercially reasonable efforts to obtain one or more Persons (other than any natural Person) which are not then Lenders (which Persons may be suggested by the Borrower Representative) to become party to the Credit Documents and to provide a commitment to the extent necessary to satisfy Borrower Representative’s request for Incremental Revolving Credit Commitments, as the case may be; provided, however, (a) compensation for any such assistance by the Administrative Agent shall be mutually agreed by the Administrative Agent and Borrower Representative, (b) such assistance shall be subject to the execution of a customary engagement letter and (c) Administrative Agent shall have no obligation to provide any such Incremental Revolving Credit Commitment. In each case, such Incremental Revolving Credit Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) (x) other than as described in the amount immediately succeeding clause (y), no Event of Default shall exist on such increase and the Facility Increased Amount Date immediately before or Facilities involvedimmediately after giving effect to such Incremental Revolving Credit Commitments or (y) if such Incremental Revolving Credit Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under Section 12.1 or Section 12.5 shall exist on such Increased Amount Date, (ii) the applicable Incremental Facility Closing DateRevolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower Representative and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 6.4(e) and (iii) the applicable Borrower(s) and (iv) Borrowers shall make any payments required pursuant to Section 2.11 in connection with the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Credit Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no applicable. No Lender shall have any obligation to participate in provide any increase described in Commitments pursuant to this paragraph unless it agrees Section 2.14(a). For all purposes of this Agreement, any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated a part of the series of existing Commitments of the applicable Class subject to do so in its sole discretionsuch increase.
(b) Any New Lender that elects On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to provide Commitments the satisfaction of the foregoing terms and conditions, (i) each loan made (including, where applicable, a loan made by way of Banker’s Acceptances or BA Equivalent Notes) under an Incremental Facility Revolving Credit Commitment (ian “Incremental Revolving Credit Loan”) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent anddeemed, in the case of any Incremental Revolving Loansfor all purposes, the Issuing Lenders and the Swingline Lender a Loan and (ii) each Lender with an Incremental Revolving Credit Commitment (each an “Incremental Revolving Loan Lender”) shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under this Agreement pursuant Section 14.6(b) for an assignment of Incremental Revolving Credit Loans or Incremental Revolving Credit Commitments, as applicable, to an Additional Credit Extension Amendmentsuch Incremental Revolving Loan Lender.
(c) Unless otherwise agreed by On any Increased Amount Date, each Lender in respect of the Administrative Agent, on applicable Class of Commitments immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Facility Closing Date with Revolving Loan Lender in respect of such increase, and each such Incremental Revolving Loan Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit, so that after giving effect to each such deemed assignment and assumption of participations, the Revolving Facility, percentage of the aggregate outstanding participations hereunder in such Letters of Credit held by each Borrower shall borrow Lender holding Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) including each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Revolving Loan or Adjusted Term SOFR Rate for any Term Benchmark LoanLender), as applicable, borrowed will equal the percentage of the aggregate Total Revolving Credit Commitments of all Lenders under the Credit Facilities. In connection with any Incremental Revolving Credit Commitment hereunder, upon the request of the Borrower Representative, the Letter of Credit Commitment may be increased with the approval of the Letter of Credit Issuer and the Administrative Agent by an amount not to exceed the amount of such Incremental Revolving Credit Commitment, in their sole and absolute discretion. Additionally, if any Revolving Loans of the Class of Revolving Loans that are being increased are outstanding at the time any Incremental Revolving Credit Commitments are established, the applicable Lenders immediately after effectiveness of such Incremental Revolving Credit Commitments shall purchase and assign at par such amounts of the Revolving Loans of such Class outstanding at such time as the Administrative Agent may require such that all of the Lenders effectively participate in each of the outstanding Revolving Loans of such Class on a pro rata basis of their Revolving Credit Commitment Percentages in respect of such Class immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)sentence.
(d) Notwithstanding anything Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the contrary Class of Commitments subject to such increase and the related Revolving Loans of such Class; provided, that underwriting, arrangement, upfront or similar fees that may be agreed to among the Borrower Representative and the Lenders providing and/or arranging such Incremental Revolving Credit Commitments may be paid in this Agreementconnection with such Incremental Revolving Credit Commitments.
(e) Each Joinder Agreement may, each without the consent of the parties hereto hereby agrees thatany other Lenders, on each Incremental Facility Closing Date, effect technical and corresponding amendments to this Agreement shall be amended to and the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment other Credit Documents as may be effected necessary or appropriate, in writing by the opinion of the Administrative Agent and the Parent Borrower and furnished Representative, to effect the other parties heretoprovisions of this Section 2.14.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying elect to request, prior to the Latest Maturity Date, additional term loans hereunder (any such additional term loans, the “Incremental Loans” and the commitments therefor, the “Incremental Commitments”); provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the total aggregate initial principal amount (as of the date of incurrence or committed amount, if applicableavailability thereof) of all such requested Incremental Term Loans and or Incremental Revolving Commitments, together with when added to the aggregate principal amount of any Permitted Incremental Equivalent DebtDebt incurred at such time, shall not exceed the Incremental Cap;Limit on such date, (ii) the total aggregate principal amount of such Incremental Loans or Incremental Commitments shall, unless otherwise approved by the Administrative Agent, not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i) and (iii) the incurrence of any such Incremental Loans or Incremental Commitments is permitted pursuant to the terms of the Revolving Indebtedness Documents.
(Bb) Each such notice shall specify (i) the date (each, an “Incremental Closing Date”) on which the Borrower proposes that the Incremental Loans shall be made, which shall be a date not less than 10 Business Days (or such lesser number of days as may be acceptable to the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (i) the identity of each Lender or other Person that is an eligible assignee pursuant to Section 13.6(b) to whom the Borrower proposes any portion of such Incremental Commitments be allocated (each, an “Incremental Lender”) and the amounts of such allocations; provided that (x) with respect no Incremental Lender that is not an existing Lender, an Affiliate of a Lender or an Approved Fund shall provide Incremental Loans unless the Administrative Agent shall have consented thereto (such consent not to any Incremental Term Loans being incurred to finance a Permitted Acquisition be unreasonably withheld or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred delayed) and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwiseany Lender approached to provide all or a portion of any Incremental Loans may elect or decline, as in its sole discretion, to provide such Incremental Loans.
(c) The terms of each incurrence of Incremental Loans or Incremental Commitments shall be determined by the Borrower and the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment Lenders; provided that:
(including the making of any i) Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Cx) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, secured on a pro forma pari passu basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event Obligations shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no not mature earlier than the weighted average life Latest Maturity Date and the Weighted Average Life to maturity Maturity of such Incremental Loans or Incremental Commitments shall not be shorter than the remaining Weighted Average Life to Maturity of the Initial Term Facility Loans outstanding as of such Incremental Closing Date and (y) either secured on a junior basis to the Obligations or unsecured shall not mature earlier than 91 days after the Latest Maturity Date of the Loans outstanding as of such Incremental Closing Date (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that refinancing which does not have a shorter weighted average life to maturity mature earlier than 91 days after the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect Latest Maturity Date of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or outstanding as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and the applicable Credit Party agrees at the time of incurrence thereof to take all such actions required to cause such conversion or exchange) and shall require no amortization, prepayments, redemptions, repurchases or similar required payments (other than customary offers to purchase in connection with a change of control or cross-acceleration) prior to its stated final maturity date;
(ii) the aggregate amount All-In Yield of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to Incremental Loans incurred within twelve (12) months after the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as Closing Date shall be agreed upon between determined by the Parent Borrower and the relevant Lenderapplicable Incremental Lenders (provided that the All-In Yield applicable to such Incremental Loans shall not be greater than the All-In Yield for the Initial Loans plus 50 basis points per annum unless the ABR Margin and the Eurodollar Margin are increased so as to cause the All-In Yield for the Initial Loans to equal the All-In Yield for such Incremental Loans minus 50 basis points per annum).
; (diii) Notwithstanding anything (A) if such Incremental Loans are secured, they will be secured solely by Collateral on pari passu or junior (but in no event senior) basis with the Obligations and, if necessary, will be subject to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each an Acceptable Intercreditor Agreement and (B) no Incremental Facility Closing Date, this Agreement Loans shall be amended to guaranteed by any Person other than the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.Subsidiary Guarantors;
Appears in 2 contracts
Sources: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions after the First Refinancing Facility Agreement Effective Date, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments, provided that such Lenders shall make, obtain or increase the aggregate amount of their all the Incremental Term Loans or Revolving Commitments established hereunder shall not exceed (any A) $50,000,000 and (B) such increased greater amount that will not result in the First Lien Secured Leverage Ratio, determined on a Pro Forma Basis giving effect to such Incremental Facility (assuming that all Revolving Commitments, “including any Incremental Revolving Commitments” , have been fully funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the First Lien Secured Leverage Ratio the cash proceeds of the Borrowings under any facility under which such Incremental Revolving Facility or Incremental Term Loans or Facility, but not excluding the use of such proceeds) exceeding 3.75 to 1.00. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments are made available, an “or the Incremental Facility”)Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for such Borrower proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans such Person is not then a Lender, must be an Eligible Assignee and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall must be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect reasonably acceptable to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment with respect to proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender).
(b) The terms of any Incremental Revolving Commitments that such commitments are fully drawn) without the netting and Revolving Loans and other extensions of proceeds thereof and any Permitted Acquisition credit to be made with the proceeds thereof))thereunder shall be, with the financial covenants except as otherwise set forth in Section 7.1herein, recomputed as identical to those of the last day Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that (i) the most recently ended fiscal quarter maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Parent Borrower for which financial statements are available;
Revolving Maturity Date, (Dii) in there shall be no event shall it be a condition mandatory reduction of any Incremental Revolving Commitments prior to the effectiveness of, or Borrowing under, Revolving Maturity Date and (iii) any upfront fees applicable to any Incremental Revolving Facility that any representation or warranty of any Loan Party and Incremental Revolving Commitments and Incremental Revolving Loans shall be true and correct in all material respects, except and solely to the extent required as determined by the lenders Borrower and the Incremental Revolving Lenders providing such Incremental Facility;
. The terms of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Term Commitments and the Term Loans; provided that (Ei) if the all-in yield as determined by the Administrative Agent in accordance with customary market practice (whether in the form of interest rate margins, LIBOR floor, ABR floor or original issue discount or upfront fees payable to all Lenders providing such Incremental Term Loans (with such upfront or similar fees or original issue discount being equated to interest based on an assumed four-year life to maturity) but not structuring, arrangement or similar fees paid to the arrangers for such Indebtedness) relating to any Incremental Term Loans exceeds by more than 0.50% per annum the all-in yield as determined by the Administrative Agent in accordance with customary market practice (calculated in the same manner as above) relating to the Term Loans, then the Applicable Rate then in effect for the Term Loans shall automatically be adjusted such that the all-in yield relating to the Term Loans is equal to the all-in yield relating to the Incremental Term Loans minus 0.50%, (ii) the upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (iii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Terms Loans and (iv) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Facility);
(F) all Maturity Date. Any Incremental Term Facilities established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans and any Revolving Loans made in respect thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Term Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall rank be secured by the Collateral on a pari passu in right of payment and right of security in respect of the Collateral basis with the Term Loans other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
(G) except with respect effected pursuant to pricing one or more Incremental Facility Agreements executed and fees or as otherwise set forth in this Section 2.25(a)delivered by Holdings, all terms of any the Borrower, each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to Incremental Facilities and the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Incremental Commitments and the making of Loans and issuance of Letters of Credit Extension Amendment;
thereunder to be made on such date (Iprovided that this clause (i) shall not apply to the extent agreed by the Incremental Lenders if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct in all material respects on and as of such prior date (provided that, to the extent agreed by the Incremental Lenders, the representations and warranties referred to in this clause (ii) may be limited in a manner customary for limited conditionality acquisition financings if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (iii) after giving effect to such Incremental Commitments and the making of Loans pursuant thereto (and based on the assumption that the full amount of the Aggregate Revolving Commitment, including any Incremental Revolving Commitments, has been funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the covenant calculations the cash proceeds of the Borrowing under any such Incremental Revolving Facility or Incremental Term Facility but not excluding the use of such proceeds), Holdings and the Borrower shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.12 (or, if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition, on the date of signing of the definitive agreement for such acquisition), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (v) Holdings and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction, including a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the Aggregate Revolving Commitment shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitments, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(dh) Notwithstanding anything This Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretocontrary.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)
Incremental Facilities. (a) The Parent Borrower and/or may by written notice to the Administrative Agent at any Additional Borrower and any time after the Acquisition Effective Date elect to request the establishment of one or more Lenders new term loan commitments (including New Lendersthe “Incremental Commitments”), in an aggregate principal amount not to exceed the Maximum Incremental Facilities Amount on such date, and, in each case, not to be less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the Maximum Incremental Facilities Amount on such date of determination), and integral multiples of $10,000,000 in excess of that amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may from time be agreed by the Administrative Agent); provided that any Lender offered or approached to time agree provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment; provided, further, that any Incremental Lender shall be subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed) if and to the extent that such Lenders shall make, obtain or increase the amount approval would be required pursuant to Section 9.04 for an assignment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which to such Incremental Term Loans Lender. The Borrower shall notify the Administrative Agent prior to the Increased Amount Date of the identity of each Lender or Incremental Revolving Commitments are made availableother Person that is an Eligible Assignee (each, an “Incremental FacilityLender”) to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations.
(b) Such Incremental Commitments shall become effective as of such Increased Amount Date; provided, that:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or Investment permitted hereunder, no Event of Default pursuant to Section 7.01(c), Section 7.01(e), Section 7.01(f), Section 7.02(a), Section 7.02(b), Section 7.02(h), Section 7.02(i) or Section 7.02(j) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) as applicablea condition to the Borrowing under such Incremental Commitments:
A. each of the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects on and as of the date of such Borrowing (both immediately before and after giving effect to such Incremental Commitments and the application of the proceeds thereof) with the same effect as though made on and as of the date of such Borrowing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by executing “materiality”, “Material Adverse Effect” or similar language shall be true and delivering correct (after giving effect to any qualification therein) in all respects; and
B. the Administrative Agent shall have received a fully executed and delivered Borrowing Request in accordance with the requirements hereof, provided that, if the proceeds of any Incremental Commitments are being used to finance a Permitted Acquisition or Investment permitted hereunder, the reference in paragraph (ii)(A) of this Section 2.17(b) to the accuracy of the representations and warranties shall refer to the accuracy of (a) the representations and warranties that would constitute Specified Representations and (y) the representations and warranties made by, or with respect to, the target or the assets that are the subject of such Permitted Acquisition or Investment in the definitive documentation related thereto that are material to the interests of the applicable Incremental Lenders (but only to the extent that the Borrower or its Subsidiaries have the right to terminate its or their respective obligations under such documentation (or decline to consummate the transaction contemplated thereunder) as a result of a breach of such representations);
(iii) the Incremental Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower, the Incremental Lenders and the Administrative Agent;
(iv) the Borrower shall deliver or cause to be delivered any documents as reasonably requested by the Administrative Agent in connection with any such transaction, including (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents (including, for the avoidance of doubt, any Mortgage) as may be reasonably requested by the Administrative Agent; and
(v) the Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Commitments.
(c) On any Increased Amount Date on which any Incremental Commitments become effective, subject to the satisfaction of the foregoing terms and conditions, (i) each applicable Incremental Lender shall make a Loan to the Borrower (an Additional Credit Extension Amendment specifying “Incremental Loan”) in an amount equal to its Incremental Commitment and (ii) each Incremental Lender shall become a Lender hereunder with respect to the Incremental Commitment and the Incremental Loans made pursuant thereto.
(d) The terms and provisions of the Incremental Loans and Incremental Commitments shall be, except as otherwise set forth herein or in the Incremental Amendment, identical to the then existing Loans. In any case, (i) the amount Weighted Average Life to Maturity of such increase and all Incremental Loans shall be no shorter than the Facility or Facilities involvedWeighted Average Life to Maturity of the then existing Loans, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Loan Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Date shall be no earlier than the weighted average life to maturity of Latest Maturity Date at such time; provided, that at no time shall the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions Loans (including no payment or bankruptcy event of default)Incremental Loans) have more than five different maturity dates, would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fiii) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing security with the then existing Loans, (iv) all Incremental Loans shall be guaranteed by the Loan Parties and fees be secured by a lien on any property or as otherwise asset that secures the then existing Loans, (v) the interest margins applicable to the Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Incremental Amendment; provided, however, that if the All-In Yield applicable to such Incremental Loans shall be greater than the applicable All-In Yield payable on any other Class of Loans pursuant to the terms of this Agreement as amended through the date of such calculation by more than 50 basis points per annum (the amount of such excess, the “Yield Differential”), then the interest rate (together with, as provided in the proviso below, the Eurocurrency or Alternate Base Rate floor) with respect to each such Class of Loans shall be increased by the applicable Yield Differential; provided, further, that, if any Incremental Loans include a Eurocurrency or Alternate Base Rate floor that is greater than the Eurocurrency or Alternate Base Rate floor applicable to any existing Class of Loans such differential between interest rate floors shall be included in the calculation of All-In Yield for purposes of this clause (v), but only to the extent an increase in the Eurocurrency or Alternate Base Rate floor applicable to the existing Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Eurocurrency and Alternate Base Rate floors (but not the applicable rate unless otherwise required to be adjusted pursuant to this Section 2.25(a2.17(d), all terms of any Incremental Term Facility, if not consistent with ) applicable to the applicable existing Term Facility, Loans shall be determined increased to the extent of such differential between interest rate floors, (vi) any Incremental Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, as specified in the Parent Borrower applicable Incremental Amendment and (vii) to the lenders extent the terms or provisions applicable to any Incremental Loans are inconsistent with the terms and provisions applicable to the then existing Loans (except to the extent permitted by clause (i), (ii), (v) or (vi) above or except for such Incremental Term Facility terms and provisions applicable only to periods after the Latest Maturity Date), they shall be reasonably satisfactory acceptable to the Administrative Agent; provided that .
(e) Incremental Commitments shall be documented pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, amendments to the other Loan Documents to be included in the Incremental Amendment, executed by the Borrower, each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of Lender providing such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Administrative Agent. The Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) Amendment may, without the consent of the Administrative Agentany other Loan Party, (x) each increase effected pursuant Agent or Lender, effect such amendments to this paragraph shall be in a minimum amount of at least $50,000,000 Agreement and (y) no more than five Incremental Facility Closing Dates the other Loan Documents as may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans necessary or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andappropriate, in the case reasonable opinion of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower, to effect the provisions of this Section 2.17 and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (to be included in the Incremental Amendment) with the Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or Commitments increased or extended pursuant to this Section 2.17 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower and furnished in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.17, including any amendments that are not adverse to the other parties hereto.
(einterests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans that are intended to be fungible with the Initial Loans to be fungible with such Initial Loans, which shall include any amendments to Section 2.06(a) that do not reduce the ratable amortization received by each Lender thereunder. The Closing Date Borrower will use the proceeds of the Incremental Revolving Commitments Loans for any purpose not prohibited by this Agreement. No Lender shall be provided on the Closing Date as obligated to provide any Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this AgreementLoans.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders (including New Lenders) occasions at any time after the Closing Date, the Obligors may from time by written notice to time agree that such Lenders shall make, obtain or the Administrative Agent elect to request an increase to the amount of their Incremental Term Loans or Revolving existing Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under the loans made thereunder, the “Incremental Loans”) in an aggregate amount not to exceed $300,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Obligors propose that such Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent. Incremental Term Loans Commitments may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to make, or provide commitments with respect to, an Incremental Revolving Commitments are made availableLoan) or by any other Person (each, an “Incremental FacilityLender”), as applicable, by executing and delivering ; provided that any such Incremental Lender to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower, the Administrative Agent Agent, the Issuing Banks and the Swingline Lender unless such Incremental Lender is an Additional Credit Extension Amendment specifying existing Lender (each of which approvals shall not be unreasonably withheld, conditioned or delayed). The terms and provisions of any Incremental Commitments shall be identical to the existing Commitments.
(b) The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent:
(i) the amount of immediately prior to and after giving pro forma effect to such increase Incremental Commitments and borrowings and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case use of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”proceeds thereof, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefromexist;
(Cii) the Parent Borrower representations and warranties made or deemed made by the Obligors in Article III hereof shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, respects on the Increased Amount Date except and solely to the extent required by that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the lenders providing such Incremental FacilityLoan Documents;
(Eiii) the weighted average life Administrative Agent shall have received one or more Additional Credit Extension Amendments, providing for Incremental Commitments in the amount of such increase; and
(iv) the Administrative Agent shall have received an opinion of counsel to maturity the Loan Parties (in substantially the same form as delivered on the Closing Date which may at the option of any the Borrower be delivered by internal counsel of the Loan Parties), and addressed to the Administrative Agent and the Lenders.
(c) On each Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders shall assign to each of the Incremental Term Facility Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be no earlier than necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders and Incremental Lenders ratably in accordance with their Commitments after giving effect to the weighted average life addition of such Incremental Commitments to maturity the Commitments, (b) each Incremental Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and (c) each Incremental Lender shall become a Lender with respect to its Incremental Commitment and all matters relating thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of notice of each Increased Amount Date and in respect thereof (y) the Initial Term Facility Incremental Commitments and the Incremental Lenders, and (except z) in the case of customary high-yield bridge loans whicheach notice to any existing Lender, the respective interests in such ▇▇▇▇▇▇’s Revolving Loans, in each case subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);assignments contemplated by this Section.
(Fe) all Any upfront fees payable to the Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, Lenders shall be determined between by the Parent Borrower and the lenders for such applicable Lenders.
(f) The Incremental Term Facility Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and reasonably satisfactory to delivered by the Obligors, the Incremental Lender and the Administrative Agent; provided that , and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.04.
(g) Upon each increase in the Commitments pursuant to this Section,
(i) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Term Facility shall share ratably Lender, and each such Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such ▇▇▇▇▇▇’s participations hereunder in any mandatory prepayments outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the applicable Term Facility unless aggregate outstanding (1) participations hereunder in Letters of Credit and (2) participations hereunder in Swingline Loans held by each Lender will equal the Parent Borrower and percentage of the lenders in respect aggregate Commitments of all Lenders represented by such ▇▇▇▇▇▇’s Commitments; and
(ii) if, on the date of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the increase, there are Revolving Loans in respect thereof then outstanding, the Borrower shall be prepay such Revolving Loans (and pay any additional amounts required pursuant to Section 2.15 in connection therewith) with the terms hereof otherwise applicable proceeds of Revolving Loans from the Incremental Lender(s) to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement extent necessary in order that, after giving effect to such Additional Credit Extension Amendment;
prepayments and borrowings, all Revolving Loans will be held ratably by the Lenders (Iincluding the Incremental Lender(s)) without in accordance with their respective Commitments after giving effect to the consent of the applicable Incremental Commitment(s). The Administrative Agent, (x) each increase the Issuing Banks and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender2.04(g).
(dh) Notwithstanding anything Any upfront fees payable to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement Lenders shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing determined by the Administrative Agent Borrower and the Parent Borrower and furnished to the other parties heretoapplicable Lenders.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Millicom International Cellular Sa), Revolving Credit Agreement (Millicom International Cellular Sa)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableoccasions, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying and with the consent of the Administrative Agent and the Incremental Lenders, request (i) during the amount period from and including the Restatement Effective Date to but not including the Revolving Maturity Date (or any earlier date on which the Commitments have been terminated as provided herein), the establishment of such increase and the Facility or Facilities involved, Incremental Revolving Commitments and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with provided that the aggregate principal amount of any Permitted all the Incremental Equivalent Debt, Commitments established hereunder shall not exceed $500,000,000 (the “Incremental Committed Amount”). Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Cap;
Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee).
(b) The terms and conditions of any Incremental Revolving Commitment and loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made hereunder, and shall be treated as a single class with respect such Revolving Commitments and Loans. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be as set forth in the applicable Incremental Facility Agreement; provided that (i) no Incremental Term Maturity Date shall be earlier than, and no Incremental Term Loans shall require any repayment or prepayment of any principal amount thereof (other than amortization payments not in excess of 1% per annum of the initial principal amount of such Incremental Term Loans) prior to, the Revolving Maturity Date, (ii) Incremental Term Loans shall not have the benefit of any guarantees or collateral that do not equally benefit the Revolving Commitments and Loans and (iii) Incremental Term Loans shall not have the benefit of any representation or warranty, covenant or event of default other than those set forth herein. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans being incurred made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Credit Agreement.
(c) The Incremental Commitments shall be effected pursuant to finance a Permitted Acquisition one or a similar permitted Investment designated more Incremental Facility Agreements executed and delivered by the Parent Borrower as a “Limited Conditionality Acquisition”Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default has shall have occurred and is be continuing as of on the date of entry into the applicable acquisitioneffectiveness thereof, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, both immediately prior to and immediately after giving effect to any Additional Credit Extension Amendment (including such Incremental Commitments and the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)and issuance of Letters of Credit thereunder on such date, no Default or Event (ii) on the date of Default has occurred effectiveness thereof, the representations and is continuing or shall result therefrom;
(C) warranties of the Parent Borrower set forth in the Credit Documents shall be true and correct (A) in compliancethe case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of any Incremental Facility Activation Datesuch date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, except in the case of any Additional Credit Extension Amendment with respect such representation and warranty that expressly relates to Incremental Revolving Commitments that a prior date, in which case such commitments are fully drawn) without the netting of proceeds thereof representation and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event warranty shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be so true and correct in all material respects, except on and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
prior date, (Hiii) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments and the making of Loans and other extensions of credit thereunder on the date of effectiveness thereof, the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.2, (Iiv) the Borrower shall make any payments required to be made pursuant to Section 3.14 in connection with such Incremental Commitments and the related transactions under this Section and (v) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Credit Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable class) hereunder and under the other Credit Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) in the Issuing Lenders and case of an Incremental Lender that does not already have a Revolving Commitment, such Incremental Revolving Commitment shall constitute the Swingline Revolving Commitment of such Incremental Lender and (iiB) in the case of an Incremental Lender that already has a Revolving Commitment, the Revolving Commitment of such Incremental Lender shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Incremental Revolving Commitment, and the Revolving Loan Commitment Percentages of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit and Swing Line Loans outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit and Swing Line Loans will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Revolving Loan Commitment Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Incremental Term Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in this Section and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Revolving Loan Commitment Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.7(e).
Appears in 2 contracts
Sources: Credit Agreement (Quest Diagnostics Inc), Credit Agreement (Quest Diagnostics Inc)
Incremental Facilities. (a) The Parent Borrower may by written notice to the Administrative Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, the “Incremental Revolving Credit Commitments”) and/or any Additional Borrower and any incur one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or new term loan commitments and/or increase the commitments of any Class of Term Loans (the “Incremental Term Loan Commitments”) by an amount (1) not to exceed in the aggregate, at the time of their incurrence, the Incremental Available Amount referred to in clauses (a), (b) and (c)(i) of the definition thereof and (2) not less than, individually, $25,000,000.
(b) Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion); and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans or Revolving Commitments (may be treated as part of the same Class as any such increased Revolving Commitments, “other Incremental Revolving Commitments” and any facility under which Term Loans if such Incremental Term Loans have identical terms (other than effective yield) and are fungible for United States federal income tax purposes with such other Incremental Term Loans.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Incremental Revolving Credit Commitments and the Incremental Revolving Loan Lenders or Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable and (ii) in the case of each notice to any applicable Revolving Credit Lender of any such given Class, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans of such Class, in each case subject to the assignments contemplated by this Section.
(d) Such Incremental Revolving Credit Commitments are or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that:
(i) (x) subject, solely in the case of Incremental Term Loans, to Section 1.09(c), no Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable and the extensions of credit to be made availablethereunder on such date; provided that this clause (i)(x) may be waived or limited as agreed in the Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (y) the representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) on and as of such date, except in each case to the extent that such representations and warranties specifically refer to an “earlier date, in which case they shall be true and correct as of such earlier date); provided that, in the case of Incremental Facility”Term Loans incurred to finance a Permitted Acquisition or other Investment in the nature of an acquisition, this clause (i)(y) shall be limited to Sections 5.01(a), 5.01(b), 5.02(a), 5.13, 5.17, 5.18, 5.19 (other than the first or second sentence thereof) and 5.20;
(ii) the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 3.01);
(iii) the Incremental Facilities shall be Guaranteed by executing the Guarantors, rank pari passu in right of security with the other Facilities and delivering shall not be secured by any property or assets other than the Collateral;
(iv) all fees and reasonable out-of-pocket expenses owing to the Administrative Agent and the Lenders (other than a Defaulting Lender) in respect of the Incremental Revolving Credit Commitments and Incremental Term Loan Commitments shall have been paid; and
(v) the Borrower shall deliver or cause to be delivered legal opinions, officer’s certificates and such other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders of the Class being so increased shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders of the Class being so increased, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans of the Class being so increased and participations in Letters of Credit and Swing Line Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans and participations in Letters of Credit and Swing Line Loans will be held by existing Revolving Credit Lenders of such Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of the Class being so increased after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (ii) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of the Class being so increased and each Loan made thereunder (an Additional “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Extension Amendment specifying Loan of the Class being so increased and (iii) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto.
(f) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Class (or any Incremental Term Loan Commitments increasing any existing Term Loans) are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class or increase shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class or increase and (ii) each Incremental Term Loan Lender of such Class or increase shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class or increase and the Incremental Term Loans of such Class or increase made pursuant thereto.
(g) The terms (including pricing, “most favored nations” provisions, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions relating to excess cash flow, asset sale proceeds and condemnation proceeds) and conditions of the Incremental Term Loans and Incremental Term Loan Commitments shall be, except as otherwise explicitly set forth herein, as agreed in the Joinder Agreement between the Borrower, the applicable Incremental Term Loan Lenders providing such Incremental Term Loan Commitments and the Administrative Agent; provided that (i) the amount terms of such increase Indebtedness shall not be more restrictive, taken as a whole, to the Borrower and the Facility other Loan Parties than those set forth in this Agreement prior to the execution of such Joinder Agreement unless (x) such terms apply only after the Latest Maturity Date at the time such Indebtedness is established or Facilities involved(y) this Agreement is amended so that such terms are also applicable for the benefit of any Lenders under any then-existing Facilities, (ii) the applicable Weighted Average Life to Maturity of all Incremental Facility Closing DateTerm Loans of any such Class shall be no shorter than (x) if there are no Term Loans outstanding at such time, 36 months and (y) if there are Term Loans outstanding at such time, the Weighted Average Life to Maturity of any other Term Loans at the time of the incurrence of such Incremental Term Loans, (iii) the applicable Borrower(sIncremental Term Loan Maturity Date of each Class shall be no earlier than the Latest Maturity Date at the time of the incurrence of such Incremental Term Loans, (iv) the pricing of each Class of Incremental Term Loans may be subject to “most favored nations” provisions if and to the extent set forth in the Joinder Agreement for such Class and (ivv) in the case of Incremental Term Loans, such Indebtedness may participate on a pro rata basis or less than pro rata basis (wbut not on a greater than pro rata basis) in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Joinder Agreement, and in the case of Incremental Term Maturity DateRevolving Credit Commitments, (x) the amortization schedule for such Incremental Term Loans and Revolving Credit Commitments may participate on a pro rata basis or less than pro rata basis (ybut not on a greater than pro rata basis) in any mandatory reductions of Revolving Credit Commitments hereunder, as specified in the Applicable Margin for such Incremental Term Loans; provided, that:applicable Joinder Agreement.
(Ah) The terms and provisions of the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Revolving Loans and Incremental Revolving CommitmentsCredit Commitments shall be identical to the other Revolving Credit Loans of the Class being so increased and the Revolving Credit Commitments of the Class being so increased; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving Credit Facility of the Class being so increased, together the interest rate on the Revolving Credit Facility of such Class shall be increased to equal such required rate without further consent of the affected Lenders; provided, further, that if the Incremental Revolving Loan Lenders require a commitment fee on the undrawn portion of such Incremental Revolving Loans and Incremental Revolving Commitments in excess of the commitment fee then applicable to the Revolving Credit Facility of the Class being so increased, the commitment fee on the Revolving Credit Facility of such Class shall be increased to equal such commitment fee without further consent of the affected Lenders.
(i) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14 (including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to enable any Incremental Term Loans that are intended to be fungible with any other Term Loans to be fungible with such other Term Loans, which shall include any amendments that modify the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall scheduled installment payments to the extent such amendment does not exceed decrease the Incremental Cap;
(B) (x) with respect to any Incremental installment payment an existing Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately Lender would have received prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderamendment).
(dj) Notwithstanding anything This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretocontrary.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Post Holdings, Inc.), Credit Agreement (Post Holdings, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any on behalf of the Borrowers may by written notice to Administrative Agent elect to request the establishment of one or more Lenders (including increases in New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Credit Commitments (any such increased Revolving Commitments, the “Incremental Revolving Credit Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying aggregate amount not in excess of (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, when taken together with the aggregate principal amount (the “Excess Amount”) of any Permitted New Loan Commitments (as defined in the CF Agreement as in effect on the Original Closing Date) under the CF Facility on the date such Incremental Equivalent Debt, shall Revolving Credit Commitments become effective) $1,500,000,000 in the aggregate and not exceed the Incremental Cap;
less than $100,000,000 individually (B) or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between $1,500,000,000 and all such Incremental Revolving Credit Commitments (when taken together with respect the Excess Amount on the date such Incremental Revolving Credit Commitments become effective) obtained on or prior to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Parent Borrower on behalf of the Borrowers proposes that the Incremental Revolving Credit Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The Parent Borrower may approach any Lender or any other Person (other than a natural person) to provide all or a portion of the Incremental Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Incremental Revolving Credit Commitment. In each case, such Incremental Revolving Credit Commitments shall become effective, as a “Limited Conditionality Acquisition”, of the applicable Increased Amount Date; provided that (i) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition or (y) otherwiseIncremental Revolving Credit Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (ii) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 7 shall result therefrom;
be satisfied; (Ciii) the Parent Borrower and its Restricted Subsidiaries shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made Pro Forma Compliance with the proceeds thereof)), with the financial covenants covenant set forth in Section 7.1, recomputed 10.9 of the CF Agreement as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Incremental Revolving Credit Extension Amendment;Commitments and any Investment to be consummated in connection therewith; (iv) the Incremental Revolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Sections 5.4(d) and (e); (v) the Parent Borrower on behalf of the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the Incremental Revolving Credit Commitments, as applicable; and (vi) the Parent Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. The Parent Borrower on behalf of the Borrowers shall give the Administrative Agent prompt written notice of any increase in the aggregate amount committed in respect of the CF Facility.
(Ib) On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with New Revolving Credit Commitments shall assign to each Lender with a Incremental Revolving Credit Commitment (each, a “Incremental Revolving Loan Lender”) and each of the Incremental Revolving Loan Lenders shall purchase from each of the Lenders with New Revolving Credit Commitments, at the principal amount thereof (together with accrued interest), such interests in the New Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such New Revolving Credit Loans will be held by existing New Revolving Lenders and Incremental Revolving Loan Lenders ratably in accordance with their New Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the New Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment shall be deemed for all purposes a New Revolving Credit Commitment and each Loan made thereunder (a “Incremental Revolving Loan”) shall be deemed, for all purposes, a New Revolving Credit Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Loan Commitment and all matters relating thereto.
(c) [Reserved].
(d) The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Credit Commitments shall be identical to the New Revolving Credit Loans and the New Revolving Credit Commitments.
(e) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provision of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.14.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Hca Inc/Tn), Credit Agreement (Hca Inc/Tn)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower After the Second Amendment Effective Date and any before the Extended Term Loan Maturity Date (with respect to Term Loans) and Extended Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to Administrative Agent, may request (i) the establishment of one or more Lenders additional tranches of term loans (including New Lenders) may from time to time agree that such Lenders shall makethe commitments thereto, obtain or increase the amount of their “Incremental Term Loans or Loan Commitments”) and/or (ii) increases in the Revolving Commitments (any such increased Revolving Commitments, the “Incremental Revolving Commitments” and any facility under which such and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (i) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Facilities Amount) and (ii) after giving effect to each such request, the aggregate amount (the “Maximum Facilities Amount”) of outstanding Term Loans or Incremental and Revolving Commitments are made availableshall not exceed $1,500,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Facility”)Loan Commitments shall be effective, as applicablewhich shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may approach any Lender or any Person to provide all or a portion of the Incremental Loan Commitments; provided that (i) no Lender will be required to provide such Incremental Loan Commitment and (ii) any entity providing all or a portion of the Incremental Loan Commitments other than a Lender, by executing and delivering an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent an Additional Credit Extension Amendment specifying (with such acceptance by the Administrative Agent to not be unreasonably withheld or delayed).
(b) In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date, provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment such Incremental Loan Commitments, (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Cii) the Parent Borrower shall be in compliance, compliance with Section 7.1 as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition after giving effect to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
Loan Commitments, (Eiii) the weighted average life to maturity of any Incremental Term Facility Loan shall be no earlier greater than or equal to the then-remaining weighted average life to maturity of the Initial Extended Term Facility Loans, (except iv) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the case Increased Amount Date (giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of customary highOID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average year life to maturity maturity) paid to all of the Incremental Revolving Lenders in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments that is in effect on the Increased Amount Date, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments shall be increased so that the interest rate margin in respect of such Incremental Revolving Loan that is in effect on the Increased Amount Date (giving effect to any OID issued or upfront fees paid to all of the Incremental Lenders in connection therewith) is no greater than the Initial Term Facility);
sum of (Fx) the Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments that is in effect on the Increased Amount Date and (y) the upfront fees paid to all of the Lenders in respect of their Extended Revolving Commitments, (v) unless the final maturity date of such Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect is at least one year later than the final maturity date of the Collateral with Extended Term Loans, the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders interest rate margin in respect of such Incremental Term Facility elect lesser payments;Loans (giving effect to OID or upfront fees paid to all of the Incremental Term Lenders in connection therewith (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed the sum of (x) the Applicable Margin for the Extended Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Extended Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or upfront fees paid to all of the Incremental Term Lenders in connection therewith) is no greater than the sum of (x) the Applicable Margin for the Extended Term Loans and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, (vi) if the final maturity date of such Incremental Term Loans is at least one year later than the final maturity date of the Extended Term Loans, the interest rate margin in respect of such Incremental Term Loans (giving effect to OID or upfront fees paid to all of the Incremental Term Lenders in connection therewith (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 25 bps the sum of (x) the Applicable Margin for the Extended Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 25 bps the sum of such Applicable Margin and such fees, such Applicable Margin for the Extended Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (giving effect to any OID issued or upfront fees paid to all of the Incremental Term Lenders in connection therewith) is no greater than the sum of (x) the Applicable Margin for the Extended Term Loans, (y) the upfront fees paid to all of the Lenders in respect of their Extended Term Loans and (z) 25 bps, and (vii) the Incremental Loan Commitments shall be effected pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Term Loan Lender and the Administrative Agent pursuant to which such Incremental Term Loan Lender agrees to be bound to the terms of this Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement.
(Hc) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving Loans in respect thereof outstanding on such Increased Amount Date as shall be pursuant necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the terms hereof otherwise applicable to the Revolving Facility and addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments under this Agreement after giving effect shall be identical to such Additional Credit Extension Amendment;the Revolving Loans and the Revolving Commitments.
(Id) On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.23.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Avis Budget Group, Inc.), Credit Agreement (Avis Budget Group, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or (ii) the establishment of Incremental Facility”)Term Loan Commitments. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoan Commitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, Commitment or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichLoan Commitment may elect or decline, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects , to provide Commitments under such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Facility (i) to the extent Lender, if such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent Person is not to be unreasonably withheldthen a Lender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, the Issuing Lenders Bank and (z) none of the Swingline Lender Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20 shall not exceed the sum of (A) $75,000,000 plus (B) unlimited additional Incremental Revolving Commitments and/or Incremental Term Loan Commitments so long as, after giving pro forma effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full, but excluding the proceeds of any such Incremental Term Loans and/or Incremental Revolving Commitments for purposes of netting cash and Permitted Investments in the calculation of the Senior Secured Net Leverage Ratio), the Senior Secured Net Leverage Ratio shall not exceed 2.50 to 1.00 (other than to the extent such Incremental Revolving Commitments and/or Incremental Term Loan Commitments are incurred pursuant to this clause (B) concurrently with the incurrence of Incremental Revolving Commitments and/or Incremental Term Loan Commitments in reliance on clause (A) of this sentence, in which case the Senior Secured Net Leverage Ratio shall be permitted to exceed 2.50 to 1.00 to the extent of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments and/or Incremental Term Loan Commitments may be incurred pursuant to this clause (B) prior to utilization of the amount set forth in clause (A) of this sentence.
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments, Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the latest of the latest Maturity Date hereunder or any other then existing Incremental Term Loan Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall become have a Lender under this Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any other then existing Term Loans, (iii) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the then existing Term Loans and (iv) shall have the same Guarantees as and shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Revolving Loans and the then existing Term Loans (except in the case of clause (iii) and (iv) to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the latest Maturity Date hereunder may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date hereunder and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans and the then existing Term Loans. Any Incremental Term Loan Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Commitment hereunder, or provide Incremental Term Loans, at any time.
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless:
(i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect (including pro forma effect) to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by materiality or “Material Adverse Effect”, in all respects) on and as of such date;
(iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn but excluding the proceeds of any such Incremental Commitments for purposes of netting cash and Permitted Investments in the calculation of the Total Net Leverage Ratio), the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11;
(iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section;
(v) the Administrative Agent shall have received documents and opinions consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrower hereunder after giving effect to such increase;
(vi) any new Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Incremental Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, on each its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(vii) the other conditions, if any, set forth in the applicable Incremental Facility Closing Date Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h), (i) or (j) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the date of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, (4) as of the date of the borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with respect such representations and warranties to be reasonably determined by the Lenders providing such Incremental Term Loans) shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and (5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the Revolving Facility, each Borrower shall borrow Revolving Loans under provisions of this Section and no consent of any Lender (other than the relevant increased Revolving Commitments from each Lender Lenders participating in the relevant increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder (it being understood that such Incremental Lender shall deliver the documentation required under Section 2.17(f) to the Administrative Agent and the Borrower) and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Lender with a Revolving Commitment (immediately prior to giving effect to such Incremental Revolving Commitments) shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders with Revolving Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the Borrower in an amount determined equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the Borrower referred to in paragraph (a) above and of the amount effectiveness of any Incremental Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the conditions set forth in Section 5 be made pursuant to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementparagraph (e) above.
Appears in 2 contracts
Sources: Credit Agreement (Eagle Pharmaceuticals, Inc.), Credit Agreement (Eagle Pharmaceuticals, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall makeafter the Closing Date, obtain establish one or more tranches of term loans or increase the amount an outstanding tranche of their term loans (each an “Incremental Term Loans or Facility”), and/or increase the Aggregate Revolving Commitments (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Increase”); each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Borrower, as applicable, by executing and delivering to the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an Additional Credit Extension Amendment specifying “Incremental Facility Amendment”); provided that:
(i) the principal amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) shall not exceed the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, thatgreater of:
(A) $250,000,000 minus the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate initial principal amount of any Permitted all previously incurred Incremental Equivalent Debt, shall not exceed the Incremental Cap;Facilities; and
(B) the maximum amount that, after giving effect to such Incremental Facility on a Pro Forma Basis, would not cause the Consolidated Senior Secured Leverage Ratio to exceed 3.00:1.00 assuming the full amount of such Incremental Facility is fully drawn and excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of such calculation of the Consolidated Senior Secured Leverage Ratio.
(xii) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has shall have occurred and is continuing as of the date of entry into the applicable acquisitionbe continuing, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and no Default would exist after giving effect to any Additional Credit Extension Amendment (including Incremental Facility, both on the making of any date on which such Incremental Term Loans or Facility is requested and on the date on which such Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and Facility is continuing or shall result therefromto become effective;
(Ciii) the Parent Borrower each Incremental Facility shall be in compliance, a minimum amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term FacilityAdministrative Agent may agree);
(Fiv) all no existing Lender shall be under any obligation to provide any Incremental Term Loans Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(v) the borrower and guarantors for each Incremental Facility shall be the same as for the Revolving Loans made Credit Facility, each Incremental Facility shall be secured by Liens in respect of the Collateral that are parity with the Liens in the Collateral securing the Obligations and each Incremental Revolving Commitments Facility shall rank pari passu in right of payment and right with the Obligations;
(vi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of security (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (B) documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance acceptable to the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan PartyAdministrative Agent;
(Gvii) except with respect the Administrative Agent shall have received:
(A) a certificate of the Borrower dated as of the effective date of such Incremental Facility signed by a Responsible Officer of the Borrower (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of the Borrower approving such Incremental Facility (which may be the same resolutions as those delivered pursuant to pricing and fees or as otherwise set forth in this Section 2.25(a4.01(c)(ii), if such resolutions are deemed appropriate by the Administrative Agent for purposes of approving the Incremental Facility and authorizing the necessary actions incident thereto), and (2) certifying that, before and after giving effect to such Incremental Facility, (x) the representations and warranties contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all terms material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) on and as of the date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) as of such earlier date, and (y) no Default exists;
(B) a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility (and (1) assuming, in the case of any Incremental Term FacilityRevolving Increase, if not consistent that the entire amount of such Incremental Revolving Increase is funded and (2) excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of calculation of the Consolidated Senior Secured Leverage Ratio and the Consolidated Total Leverage Ratio) the Borrower is in compliance with the applicable existing Term financial covenants in Section 7.11 on a Pro Forma Basis;
(C) such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility;
(D) to the extent requested by the Administrative Agent, shall be determined between customary opinions of legal counsel to the Parent Borrower Borrower, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the lenders effective date of such Incremental Facility; and
(E) such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Term Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(viii) in the case of an Incremental Revolving Increase:
(A) the terms and conditions of such Incremental Revolving Increase (other than upfront fees payable to the Lenders providing such Incremental Revolving Increase and arrangement, structuring, underwriting and similar fees not paid generally to all Lenders providing such Incremental Revolving Increase) shall be the same as the terms applicable to the Aggregate Revolving Commitments hereunder; and
(B) on the effective date of such Incremental Revolving Increase, the existing Lenders with Revolving Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Revolving Increase and such assignments and adjustments, each Lender (including the Lenders providing such Incremental Revolving Increase) will hold its pro rata share (based on its Applicable Percentage of the increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans;
(ix) in the case of an Incremental Term Facility:
(A) the Administrative Agent shall have determined in its discretion in consultation with the Borrower whether such Incremental Term Facility is a tranche A term loan (an “Incremental Tranche A Term Facility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(B) the interest rate, interest rate margins, interest rate floors, fees, original issue discount, prepayment premiums, amortization, mandatory prepayments, “most favored nation” pricing protection and final maturity date for such Incremental Term Facility shall be as agreed by the Borrower and the Lenders providing such Incremental Term Facility; provided that that:
(1) the final maturity of such Incremental Term Facility shall not be earlier than the later of (x) the Maturity Date with respect to Revolving Loans and (y) the final maturity of any other Incremental Term Facility;
(2) (x) if such Incremental Term Facility is an Incremental Tranche A Term Facility, the Weighted Average Life of such Incremental Term Facility shall be customary for a tranche A term loan (as determined by the Administrative Agent in its discretion in consultation with the Borrower) and in any event shall not be shorter than the then remaining Weighted Average Life of any outstanding Incremental Tranche A Term Facility; and (y) if such Incremental Term Facility is an Incremental Tranche B Term Facility, the Weighted Average Life of such Incremental Term Facility shall be customary for a tranche B term loan (as determined by the Administrative Agent in its discretion in consultation with the Borrower) and in any event shall not be shorter than the then remaining Weighted Average Life of any outstanding Incremental Tranche B Term Facility; and
(3) prepayment requirements of such Incremental Term Facility shall be customary for term loan facilities (as determined by the Administrative Agent in its discretion);
(C) all other terms and conditions applicable to such Incremental Term Facility must be customary for tranche A term loans or a tranche B term loans, as applicable, as determined by the Administrative Agent in its discretion or otherwise acceptable to the Administrative Agent in its discretion;
(D) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility; and
(E) each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such other Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments Facilities pursuant to Section 10.6 2.05 (such consent not to be unreasonably withheld, delayed or conditioned), otherwise provide for more favorable prepayment treatment for the then outstanding other Incremental Term Facilities) and shall be reasonably satisfactory to have ratable voting rights with other Incremental Term Facilities (or otherwise provide for more favorable voting rights for the Administrative Agent and, in the case of any then outstanding other Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant LenderFacilities).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (5.11 Abr Corp.), Credit Agreement (Compass Group Diversified Holdings LLC)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Closing Date, the Borrowers may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”, together with the Incremental Revolving Commitments, the “Incremental Commitments”), in an aggregate amount not to exceed $750,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Revolving Borrowers or the Term Loan Borrowers, as applicable, propose that such Incremental Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Revolving Borrowers or the Term Loan Borrowers, as applicable, to arrange a syndicate of Lenders willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and (z) any Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Revolving Borrowers or the Term Loan Borrowers, as applicable, and the Administrative Agent, and, if an Incremental Revolving Commitment, the Issuing Bank and the Swingline Lender (each of which approvals shall not be unreasonably withheld), unless such Incremental Revolving Loan Lender or Incremental Term Loan Lender is an existing Lender. The terms and provisions of any Incremental Revolving Commitments shall be identical to the existing Revolving Commitments. The terms and provisions of any Incremental Term Loan Commitments and any facility under which Incremental Term Loans shall (a) provide that the maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the Term Loan Maturity Date and shall not have any scheduled amortization payments, (b) share ratably in any prepayments of the existing Term Loan Facility, unless the Term Loan Borrowers and the Incremental Term Loan Lenders in respect of such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing elect lesser payments and delivering (c) otherwise be identical to the Administrative Agent an Additional Credit Extension Amendment specifying existing Term Loans. The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (yii) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower recent month for which financial statements are available;
have been delivered pursuant to Section 5.01, the Borrowers would have been in compliance with the Financial Covenants (D) in no event shall it be a condition after giving effect to any increase to the effectiveness ofmaximum Total Leverage Ratio pursuant to Section 6.06(a) during a Total Leverage Ratio Increase Period, if applicable) that are applicable at such time; (y) the representations and warranties made or Borrowing under, any Incremental Facility that any representation or warranty of deemed made by the Borrowers in any Loan Party Document shall be true and correct in all material respects, respects on the effective date of such Incremental Commitments except and solely to the extent required by that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the lenders providing such Incremental Facility;
Loan Documents; and (Ez) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrowers to authorize such Incremental Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Subsidiary Guarantor authorizing the Subsidiary Guaranty by such Subsidiary Guarantor of such Incremental Commitments; provided that and (ii) a customary opinion of counsel to the Borrowers and the Subsidiary Guarantors (which may be in substantially the same form as delivered on the Closing Date and may be delivered by internal counsel of the Borrowers), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Revolving Borrowers or the Term Loan Borrowers, as applicable, payable to any new Lender, and replacement notes executed by the Revolving Borrowers or the Term Loan Borrowers, as applicable, payable to any existing Lenders. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to its Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender shall share ratably in any mandatory prepayments of make a Loan to the applicable Term Facility unless Loan Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Parent Borrower Incremental Term Loan Commitment and the lenders Incremental Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect of such Incremental Term Facility elect lesser payments;
thereof (Hy) any the Incremental Revolving Commitments and the Incremental Revolving Loans Loan Lenders or the Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable, and (z) in respect thereof the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The upfront fees payable to the Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders shall be determined by the Revolving Borrowers or the Term Loan Borrowers, as applicable, and the applicable Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders. The Incremental Commitments shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by the Revolving Borrowers or the Term Loan Borrowers, as applicable, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.04.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Cooper Companies Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableoccasions, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, request (i) the amount establishment of such increase and the Facility or Facilities involved, Incremental Revolving Commitments and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, Commitments; provided that (wA) the applicable aggregate amount of all the Incremental Term Maturity Date, Commitments established hereunder shall not exceed US$600,000,000 and (B) no Incremental Commitments may be established until after the earlier of (x) the amortization schedule for such Incremental Delayed Draw Term Loans Funding Date and (y) the Applicable Margin for Delayed Draw Term Commitment Termination Date. Each such notice shall specify (1) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loans; providedCommitments, that:
as applicable, shall be effective, which shall be a date not less than 10 Business Days (Aor such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (2) the aggregate principal amount (of the Incremental Revolving Commitments or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtas applicable, shall not exceed the Incremental Cap;
being requested (B) it being agreed that (x) with respect any Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assumingCommitment or Incremental Term Commitment may elect or decline, in the case of any Additional Credit Extension Amendment with respect its sole discretion, to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and provide such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 Commitment or Incremental Term Commitment and (y) no more than five Incremental Facility Closing Dates may be selected by any Person that the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation Company proposes to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under become an Incremental Facility (i) to the extent Lender, if such consent would Person is not then a Lender, must be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall Eligible Assignee and must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing Lenders Banks or the Swingline Lender, as the case may be, would be required for an assignment to such Person pursuant to Section 10.04).
(b) The terms and conditions of any Incremental Revolving Commitment and the Swingline Lender Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and conditions of any Incremental Term Loans shall be such as the Company and the applicable Incremental Term Lenders shall agree upon; provided that (i) the Incremental Term Loans shall be extensions of credit to the Company that are guaranteed only by the Subsidiary Guarantors, (ii) the Incremental Term Loans shall become a Lender under rank pari passu in right of payment with the other Loans and the other Loan Document Obligations and shall not be secured by any Liens on any assets of the Company or its Subsidiaries, unless the Loan Document Obligations are equally and ratably secured pursuant to security documentation reasonably satisfactory to the Administrative Agent, (iii) the Incremental Facility Agreement with respect thereto shall not contain any affirmative, negative or financial covenant applicable to the Company or the Subsidiaries or any event of default that benefits the Incremental Term Lenders (but not the other Lenders), in each case, except if this Agreement is amended to include such affirmative, negative or financial covenant or event of default for the benefit of all Lenders and (iv) if any Class of Term Loans shall be outstanding immediately after giving effect to the incurrence of such Incremental Term Loans and the application of the proceeds thereof, (A) the Incremental Term Maturity Date with respect to such Incremental Term Loans shall be no earlier than the latest Maturity Date of any such Class of Term Loans, (B) the weighted average life to maturity of such Incremental Term Loans shall be no shorter than the longest remaining weighted average life to maturity of any such Class of Term Loans and (C) such Incremental Term Loans shall not be subject to any mandatory prepayment provisions. Any Incremental Term Commitments established pursuant to an Additional Credit Extension Amendmenta single Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate “Class” of Commitments or Loans for all purposes of this Agreement; provided that any Incremental Term Loans that have identical terms as any other Class of “term” Loans then outstanding (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes) may, at the election of the Company, be treated as a single Class with such outstanding “term” Loans.
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent (with the Administrative Agent hereby agreeing that its consent thereto shall not be unreasonably withheld, conditioned or delayed); provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of any Loans thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date of effectiveness, except in the case of any such representation or warranty that expressly relates to a prior date, in which case such representation or warranty shall be so true and correct on and as of such prior date, and (iii) the Company shall have delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall have been reasonably be requested by the Administrative AgentAgent in connection with any such transaction. Each Incremental Facility Agreement may, on without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Company, to give effect to the provisions of this Section, including any amendments necessary or appropriate to treat the Incremental Term Commitments and the Incremental Term Loans as a new Class of Commitments and Loans hereunder (including for purposes of voting).
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as provided herein. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Applicable Percentages of all the Revolving Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Revolving Commitments shall be deemed to be repaid, (ii) each Incremental Facility Closing Date with respect Revolving Lender that shall have had a Revolving Commitment prior to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased effectiveness of such Incremental Revolving Commitments from each Lender participating shall pay to the Administrative Agent in same day funds and in the relevant increase in applicable currency an amount determined equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by reference to (2) the amount of each Type Resulting Revolving Borrowing (as hereinafter defined) and (B) the product of Loan (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Borrower Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Existing Revolving Borrowing, (iii) each Incremental Revolving Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to Administrative Agent in same day funds and in the applicable currency an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Resulting Revolving Borrowing, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Existing Revolving Borrowing, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Resulting Revolving Borrowing, (v) after the effectiveness of such Incremental Revolving Commitments, the applicable Borrowers shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in amounts and currencies equal to the amount and currencies of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company shall, on behalf of all applicable Borrowers, deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) and (vii) the applicable Borrowers shall pay each Revolving Lender any and all accrued but unpaid interest on its Revolving Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrowers pursuant to the provisions of Section 2.13 if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Class shall make a Loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in paragraph (a) of this Section and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to of the conditions set forth in Section 5 to Applicable Percentages of the same extent applicable to the initial Revolving Commitments and without any further amendment to this AgreementLenders after giving effect thereto.
Appears in 2 contracts
Sources: Credit Agreement (Westinghouse Air Brake Technologies Corp), Credit Agreement (Westinghouse Air Brake Technologies Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “in respect of the Global Tranche Commitments and/or the US Tranche Commitments and/or (ii) the establishment of Incremental Facility”)Term Loan Commitments. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoan Commitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Loan Commitment and (y) any Person that the Applicable Margin for such Company proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not then a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Lender, all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, the Issuing Lenders Banks and the Swingline Lender Lender). Notwithstanding anything herein to the contrary, the aggregate Dollar Amount (calculated based on the Dollar Amount of such Indebtedness on the date such Indebtedness was incurred, in the case of Incremental Term Loan Commitments, or first committed, in the case of Incremental Revolving Commitments) of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20, together with the aggregate Dollar Amount (calculated based on the Dollar Amount of such Indebtedness on the date such Indebtedness is incurred) of all Incremental Equivalent Notes previously (or substantially simultaneously) incurred pursuant to Section 6.05(n), shall not exceed the sum of (A) $500,000,000 plus (B) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Effective Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (B)) plus (C) unlimited additional Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Notes so long as, after giving pro forma effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full, but excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments and Incremental Equivalent Notes for purposes of netting cash and Cash Equivalents in the calculation of the Leverage Ratio), the Leverage Ratio shall not exceed 3.50 to 1.00 (other than to the extent such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes are incurred pursuant to this clause (C) concurrently with the incurrence of Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes in reliance on clause (A) of this sentence, in which case the Leverage Ratio shall be permitted to exceed 3.50 to 1.00 to the extent of such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Notes may be incurred pursuant to this clause (C) prior to utilization of the amount set forth in clause (A) of this sentence.
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder (including the Tranche under which such Incremental Revolving Commitment is being effected), and shall be treated as a single Class with such Revolving Commitments and Loans under such Tranche. The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Tranche A Term Loan Commitments and the Tranche A Term Loans; provided that (i) the interest rate margins with respect to any Incremental Term Loans shall be as agreed by the Company and the lenders in respect thereof, (ii) any Incremental Term Loan shall become have terms, in the Company’s reasonable judgment, customary for a Lender term loan of such type under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule with respect to any Incremental Term Loans shall be as agreed by the Company and the lenders in respect thereof, provided that the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche A Terms Loans and Incremental Term Loans with the longest remaining weighted average life to maturity, (iv) no Incremental Term Maturity Date with respect to Incremental Term Loans shall be earlier than the Tranche A Term Loan Maturity Date, (v) except as set forth above (or otherwise customary for Incremental Term Loans of such type), the Incremental Term Loans shall be treated no more favorably than the Tranche A Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans; provided further that any Incremental Term Loans may add additional covenants or events of default not otherwise applicable to the Tranche A Term Loans or covenants more restrictive than the covenants applicable to the Tranche A Term Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Facility so long as all Lenders receive the benefits of such additional covenants, events of default or more restrictive covenants (unless such additional covenants, events of default or more restrictive covenants are customarily limited to term loans of the type of such Incremental Term Loans), (vi) to the extent the terms applicable to any Incremental Term Loans are inconsistent with the terms applicable to the Tranche A Term Loans (except, in each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, (vii) any Incremental Term Loans shall have the same Guarantees as, shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Loans (except to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent), (viii), in the case of Incremental Term Loans marketed as term “B” loans to institutional investors (“Incremental Term B Loans”), any Incremental Term Loan Amendment with respect to Incremental Term B Loans may (A) include such features as are, in the reasonable judgment of the Company and the Administrative Agent, customarily applicable to such type of loans (including but not limited to the ability to do refinancing amendments, extensions/loan modification offers and repurchases of such Incremental Term B Loans and limitations on the applicability of financial covenants to such Incremental Term B Loans) and (B) may provide for additional Collateral hereunder so long as such Collateral is shared on a pari passu basis with the Loans, (ix) any lenders holding Incremental Term B Loans may agree in advance pursuant to an Incremental Term Loan Amendment to certain modifications to the negative (but not financial maintenance) covenants set forth in Article VI hereof so long as such modifications shall not be applicable under this Agreement until such time as, and to the extent that, the Required Lenders (calculated without giving effect to the lenders holding such Incremental Term B Loans) have otherwise approved such modifications. Any Incremental Term Loan Commitments established pursuant to an Additional Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be more than five (5) maturity dates in respect of the Credit Extension AmendmentFacilities (including any Replacement Term Loans or Replacement Revolving Facilities).
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent, on each Incremental Facility Closing Date ; provided that (other than with respect to the Revolving Facilityincurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Company has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating Loan Party set forth in the relevant increase Loan Documents shall be true and correct in an amount determined by reference to the amount of each Type of Loan of such Borrower all material respects (andor, in the case of Eurocurrency any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) on and as of such date, (iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn), the Company shall be in pro forma compliance with the financial covenants set forth in Sections 5.09 and 5.10, (iv) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Benchmark Loans, no Event of Default under clause (a) or (f) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders Party set forth in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable Loan Documents shall be true and correct in all material respects (or, until in the expiration case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the then-current Interest Perioddate of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, (4) as of the date of the borrowing of such other rate as Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such Incremental Term Loans) shall be agreed upon between true and correct in all material respects (or, in the Parent Borrower case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and (5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Company shall be in pro forma compliance with the financial covenants set forth in Sections 5.09 and 5.10. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the relevant Lender)other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section, including, without limitation, amendments to address equity and cash patronage provisions reasonably requested by any farm credit bank and reasonably acceptable to the Administrative Agent and the Company.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment in respect of any Class, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender in respect of such Class and (B) the total Revolving Commitments of such Class shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the extent) necessary to reflect definition of the existence and terms term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any Lender holding such amendment may be effected in writing by the Administrative Agent Commitment, and the Parent Borrower and furnished Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to the other parties heretogive effect thereto.
(e) The Closing Date On the date of effectiveness of any Incremental Revolving Commitments of any Class, each Revolving Lender of any applicable Class shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Revolving Lender of any applicable Class, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be provided on necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Closing Date as Revolving Lenders of each applicable Class ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitments, subject Commitment.
(f) Subject to the terms and conditions set forth herein and in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.Increm
Appears in 2 contracts
Sources: Credit Agreement (Scotts Miracle-Gro Co), Credit Agreement (Scotts Miracle-Gro Co)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders (including New Lenders) may from time occasions after the Closing Date, by written notice to time agree the Administrative Agent, request the establishment of Incremental Commitments to be provided solely by Corre, Corre Affiliates or any other Eligible Assignee approved by Corre in its sole discretion; provided that such Lenders shall make, obtain or increase the aggregate amount of their the Incremental Term Loans Commitments incurred under this Section 2.12 on any date shall not exceed the Available Incremental Amount. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than five (5) Business Days (or Revolving Commitments such shorter period as may be agreed to by the Administrative Agent (any such increased Revolving Commitments, “at the direction of the Incremental Revolving Commitments” and any facility under Lenders)) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of the Incremental Commitments being requested (it being agreed that Corre, the Corre Affiliates or any such increase Eligible Assignee may elect or decline, in their sole discretion, to provide such Incremental Commitments).
(b) The terms and the Facility or Facilities involvedconditions of any Incremental Loans to be made thereunder shall be, (ii) except as otherwise set forth in the applicable Incremental Facility Closing DateAmendment, (iii) substantially consistent to those of the applicable Borrower(s) 2025 Term Commitments and (iv) in the case of Incremental 2025 Term Loans.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Borrower, (w) the applicable each Incremental Term Maturity Date, (x) the amortization schedule for Lender providing such Incremental Term Loans Commitments and (y) the Applicable Margin for such Administrative Agent; provided that no Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, Commitments shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, become effective unless no Default or Event of Default has shall have occurred and is be continuing as of on the date of entry into the applicable acquisitioneffectiveness thereof, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, both immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments (I) without and assuming that the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum full amount of at least $50,000,000 and (y) no more than five such Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender Commitments shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such been funded as Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderdate).
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only to the extent) necessary to reflect the existence or Lenders in respect of Commitments and terms Loans of the Incremental Term applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in Section 5 the applicable Incremental Facility Amendment, each Lender holding an Incremental Commitment shall make an Incremental Loan to the same extent applicable Borrower in an amount equal to such Incremental Commitment on the initial Revolving Commitments and without any further amendment to this Agreementdate specified in such Incremental Facility Amendment.
Appears in 2 contracts
Sources: Second Lien Term Loan Credit Agreement (Team Inc), Second Lien Term Loan Credit Agreement (Team Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders may by written notice to the Administrative Agent elect to request (including New LendersA) may from time prior to time agree that such Lenders shall makethe Revolving Commitment Termination Date, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or (B) prior to the Tranche BRestatement Effective Date Term Loan Maturity Date, the establishment of one or more new term loan commitments (the “Incremental Term Loans Loan Commitments”; together with the Incremental Revolving Commitments, the “Incremental Facilities”), by an amount not in excess of, at any time on and after the Restatement Effective Date, the sum of (i) $100,000,000 in the aggregate minus the aggregate amount of Indebtedness incurred pursuant to Section 2.24(a)(B)(i) (or any similar incremental “free and clear” basket) of the Second Lien Credit Agreement and (ii) an unlimited amount so long as such amount at such time could be incurred without causing the pro forma First Lien Leverage Ratio to exceed 3.50:1.00 (assuming that (x) the Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans fully drawn and (y) the Applicable Margin cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Indebtedness for purposes of calculating such First Lien Leverage Ratio); provided that no such Incremental Revolving Commitments or Incremental Term Loans; providedLoan Commitments shall be in an aggregate amount less than $25,000,000 (except as shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $100,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date pursuant to clause (i) above), that:
and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the aggregate principal amount date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Commitments or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Loan Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtas applicable, shall be effective, which shall be a date not exceed less than 10 Business Days after the Incremental Cap;
date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (xeach, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) subject to the terms and conditions set forth in Section 1.04 with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”Condition Acquisitions, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Incremental Revolving Commitments or (y) otherwiseIncremental Term Loan Commitments, as of applicable; (2) Facilities; (2) subject to the applicable Incremental Facility Activation Dateterms and conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, immediately prior to both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Series of Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred the conditions set forth in Section 3.02 shall be satisfied; (3) subject to the terms and is continuing or shall result therefrom;
(C) the Parent Borrower conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, Holdings shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis compliance (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, calculated in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made accordance with the proceeds thereof)), definition of Consolidated Adjusted EBITDA) with each of the financial covenants set forth in Section 7.1, recomputed 6.07 as of the last day of the most recently ended fiscal quarter Fiscal Quarter, after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the Parent relevant determination period but prior to or simultaneous with the borrowing of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the Borrower for which financial statements are available;
(Dshall make any payments required pursuant to Section 2.18(c) in no event shall it be a condition to connection with the effectiveness of, Incremental Revolving Commitments or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility Loan Commitments, as applicable; (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F6) all Incremental Term Loans other fees and any Revolving Loans made expenses owing in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; provided that (7) such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall share pari passu in the Guarantees and Collateral; and (8) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender of any Series shall share ratably make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any mandatory prepayments Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the applicable Term Facility unless the Parent Borrower Borrower’s notice of each Increased Amount Date and the lenders in respect of such Incremental Term Facility elect lesser payments;
thereof (Hyx) any the Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments shall become Revolving Commitments under this Agreement after giving effect to and the Incremental Term Loan Lenders of such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentSeries, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 as applicable and (yzy) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of each notice to any Incremental Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on in each Incremental Facility Closing Date with respect case subject to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined assignments contemplated by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoSection.
(e) The Closing Date terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term Loans and as set forth in the Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental Revolving Commitments Loans shall be provided on identical to the Closing Date Revolving Loans and such Incremental Revolving Loans will be documented solely as Incremental an increase to the Revolving Commitments, subject without any change in terms other than any change that is more favorable to the conditions set forth in Section 5 Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall be empowered to, on behalf of all the Revolving Lenders, execute an amendment to the same definitive documentation relating to the Revolving Loans in order to give effect to such a change more favorable to the Revolving Lenders). In any event (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the existing Term Loans (except by virtue of amortization or prepayment of such existing Term Loans prior to such date of determination), (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of the existing Term Loans, and (iii) if the “yield” of any relevant Loan exceeds the “yield” on the existing Term Loans by more than 50 basis points, the applicable margins for the existing Term Loans shall be increased to the extent necessary so that the “yield” on such Term Loans is 50 basis points less than the “yield” on such relevant Incremental Term Loans (for purposes of this paragraph “yield” shall be reasonably determined by the Administrative Agent (w) to include the applicable interest rate margin, (x) to exclude arrangement, commitment, structuring or other fees payable to the Joint Lead Arrangers (or their respective Affiliates) in connection with such Loans or to one or more arrangers (or their Affiliates) of any such Loan that are not shared with all Lenders providing such Loans, (y) to include original issue discount and upfront fees paid to the Lenders thereunder (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity), and (z) to include, if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under the existing Term Loans, such differential between interest rate floors equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term Loans shall be required, but only to the extent an increase in the interest rate floor in the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the initial Revolving Commitments and existing Term Loans shall be increased to the extent of such differential between interest rate floors). Each Joinder Agreement may, without the consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other CreditLoan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.24.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (RadNet, Inc.), Credit and Guaranty Agreement (RadNet, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments, provided that such Lenders shall make, obtain or increase the aggregate amount of their all the Incremental Term Loans or Revolving Commitments established hereunder shall not exceed (any A) $50,000,000 and (B) such increased greater amount that will not result in the First Lien Secured Leverage Ratio, determined on a Pro Forma Basis giving effect to such Incremental Facility (assuming that all Revolving Commitments, “including any Incremental Revolving Commitments” , have been fully funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the First Lien Secured Leverage Ratio the cash proceeds of the Borrowings under any facility under which such Incremental Revolving Facility or Incremental Term Loans or Facility, but not excluding the use of such proceeds) exceeding 3.75 to 1.00. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments are made available, an “or the Incremental Facility”)Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for such Borrower proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans such Person is not then a Lender, must be an Eligible Assignee and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall must be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect reasonably acceptable to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment with respect to proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender).
(b) The terms of any Incremental Revolving Commitments that such commitments are fully drawn) without the netting and Revolving Loans and other extensions of proceeds thereof and any Permitted Acquisition credit to be made with the proceeds thereof))thereunder shall be, with the financial covenants except as otherwise set forth in Section 7.1herein, recomputed as identical to those of the last day Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that (i) the most recently ended fiscal quarter maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Parent Borrower for which financial statements are available;
Revolving Maturity Date, (Dii) in there shall be no event shall it be a condition mandatory reduction of any Incremental Revolving Commitments prior to the effectiveness of, or Borrowing under, Revolving Maturity Date and (iii) any upfront fees applicable to any Incremental Revolving Facility that any representation or warranty of any Loan Party and Incremental Revolving Commitments and Incremental Revolving Loans shall be true and correct in all material respects, except and solely to the extent required as determined by the lenders Borrower and the Incremental Revolving Lenders providing such Incremental Facility;
. The terms of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Term Commitments and the Term Loans; provided that (Ei) if the all-in yield as determined by the Administrative Agent in accordance with customary market practice (whether in the form of interest rate margins, LIBOR floor, ABR floor or original issue discount or upfront fees payable to all Lenders providing such Incremental Term Loans (with such upfront or similar fees or original issue discount being equated to interest based on an assumed four-year life to maturity) but not structuring, arrangement or similar fees paid to the arrangers for such Indebtedness) relating to any Incremental Term Loans exceeds by more than 0.50% per annum the all-in yield as determined by the Administrative Agent in accordance with customary market practice (calculated in the same manner as above) relating to the Term Loans, then the Applicable Rate then in effect for the Term Loans shall automatically be adjusted such that the all-in yield relating to the Term Loans is equal to the all-in yield relating to the Incremental Term Loans minus 0.50%, (ii) the upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (iii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Terms Loans and (iv) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Facility);
(F) all Maturity Date. Any Incremental Term Facilities established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans and any Revolving Loans made in respect thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Term Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall rank pari passu in right of payment and right of security in respect of be secured by the Collateral on a pan passu basis with the Term Loans other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
(G) except with respect effected pursuant to pricing one or more Incremental Facility Agreements executed and fees or as otherwise set forth in this Section 2.25(a)delivered by Holdings, all terms of any the Borrower, each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to Incremental Facilities and the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Incremental Commitments and the making of Loans and issuance of Letters of Credit Extension Amendment;
thereunder to be made on such date (Iprovided that this clause (i) shall not apply to the extent agreed by the Incremental Lenders if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct in all material respects on and as of such prior date (provided that, to the extent agreed by the Incremental Lenders, the representations and warranties referred to in this clause (ii) may be limited in a manner customary for limited conditionality acquisition financings if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (iii) after giving effect to such Incremental Commitments and the making of Loans pursuant thereto (and based on the assumption that the full amount of the Aggregate Revolving Commitment, including any Incremental Revolving Commitments, has been funded with Revolving Loans and excluding in the calculation of Available Domestic Cash and Available Foreign Cash for purposes of the covenant calculations the cash proceeds of the Borrowing under any such Incremental Revolving Facility or Incremental Term Facility but not excluding the use of such proceeds), Holdings and the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (v) Holdings and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction, including a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the Aggregate Revolving Commitment shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitments, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(dh) Notwithstanding anything This Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretocontrary.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders (including New Lenders) may from time occasions after the Closing Date, by written notice to time agree the Administrative Agent, request the establishment of Incremental Commitments; provided that such Lenders shall make, obtain or increase the aggregate amount of their the Incremental Commitments incurred under this Section 2.22 on any date shall not exceed the sum of (x) an amount equal to the Base Incremental Amount in effect on such date, (y) an amount subject to the Maximum Incremental Amount as of such date and (z) an amount equal to the Voluntary Prepayment Amount as of such date (it being understood that (A) the Company shall be deemed to have used amounts under clause (y) above prior to utilization of amounts under clause (x) or (z) above and (B) the proceeds from any such incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clause (y) above and then calculating the incurrence under clauses (x) and/or (z) above). Each such notice shall specify (A) whether the Company is requesting Incremental Term Loans Commitments or Revolving Commitments (any such increased Incremental Revolving Commitments, “(B) the date on which the Company proposes that the Incremental Revolving Commitments” and any facility under Commitments shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent and (C) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitments and (y) any Person that the Company proposes to become an Additional Credit Extension Amendment specifying Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee).
(b) The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, substantially consistent to those of the Term Commitments and the Term Loans and, to the extent such terms and conditions are not substantially consistent with the terms and conditions applicable to the Term Commitments and the Term Loans, such terms and conditions shall not be more favorable, taken as a whole, to the Incremental Term Lenders providing such Incremental Term Facility than the terms of the existing Term Commitments and the Term Loans, as applicable (other than with respect to terms and conditions applicable only after the Maturity Date); provided that (i) the amount of such increase upfront fees, original issue discount, interest rates, interest rate margins, interest rate floors, prepayment premiums, “MFN” pricing protection, amortization schedule and final maturity applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Company and the Facility or Facilities involvedIncremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) except in the case of an Incremental Term Facility effected as an increase to an existing Class of Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Terms Loans, (iii) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Facility);
Maturity Date and (Fiv) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with for purposes of prepayments (either mandatory or optional), shall be treated substantially the applicable existing same as (or, at the election of the Incremental Lenders providing such Incremental Term Facility, on a basis less favorable than) the Initial Term Loans. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be determined between designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Any Incremental Revolving Commitments established pursuant to an Incremental Facility Amendment shall have substantially the Parent Borrower same terms as and be deemed to be Revolving Commitments for all purposes of this Agreement. Each Incremental Term Facility, any Incremental Revolving Commitments and all extensions of credit thereunder (i) shall be secured by the same Collateral securing the other Loan Document Obligations on a pari passu basis with the Liens on the Collateral securing the other Loan Document Obligations, (ii) shall not be secured by any property or assets of the Company or any of the Subsidiaries other than the Collateral (or property or assets that substantially concurrently become Collateral), unless otherwise permitted by this Agreement, (iii) shall be Guaranteed by the same Loan Parties that Guarantee the other Loan Document Obligations and (iv) shall not be Guaranteed by any Persons other than the Loan Parties, unless otherwise permitted by this Agreement.
(c) The Incremental Term Commitments and Incremental Term Facilities relating thereto and the lenders for Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company, each Incremental Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments (I) without and assuming that the consent full amount of such Incremental Commitments shall have been funded as Loans on such date); provided that in case of any Incremental Acquisition Term Facility if agreed by all applicable Incremental Term Lenders, the foregoing shall be satisfied if no Event of Default shall have occurred and be continuing on the date of execution of the Administrative Agentapplicable acquisition or investment documentation and no Event of Default under clause (a), (xb), (h) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility or (i) to of Article VII shall have occurred and is continuing on the extent such consent would be required for an assignment effective date of such Incremental Acquisition Term Facility, in each case determined after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditionedon the applicable date), shall be reasonably satisfactory to (ii) on the Administrative Agent anddate of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Revolving LoansAcquisition Term Facility if agreed by all applicable Incremental Term Lenders, the Issuing Lenders Specified Representations and the Swingline Lender Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality or Material Adverse Effect, in all respects and (iiB) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall become be so true and correct on and as of such prior date, (iii) the Company shall be in compliance on a Pro Forma Basis with the financial covenant set forth in Section 6.13, (iv) the relevant Borrower shall make any payments required to be made pursuant to Section 2.17 in connection with such Incremental Commitments and the related transactions under this Section 2.22 and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and, other than in connection with a Limited Condition Acquisition, consents and approvals and other documents as shall be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.22.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under this Agreement pursuant the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Additional Credit Extension Incremental Term Commitment of any Series shall make an Incremental Term Loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cf) Unless otherwise agreed by On the Administrative Agentdate of effectiveness of any Incremental Revolving Commitments, on each Revolving Lender of the applicable Class shall assign to each Incremental Facility Closing Date Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Revolving Lender, at the principal amount thereof (together with respect to accrued interest), such interests in the Revolving Facility, each Borrower shall borrow applicable Class of Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency the Dollar Tranche Revolving Commitments, participations in Letters of Credit and Swingline Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and, if applicable, participations in Letters of Credit and Swingline Loans will be held by all of the Revolving Lenders of the applicable Class (including such Incremental Facility Closing Date and (iiRevolving Lenders) ratably in accordance with their Revolving Percentages after giving effect to the aggregate amount effectiveness of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increasedIncremental Revolving Commitments. The Eurocurrency Rate applicable Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed the transactions effected pursuant to the immediately preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)sentence.
(dg) Notwithstanding anything to The Administrative Agent shall notify the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.22(a) and of the Parent Borrower and furnished to effectiveness of any Incremental Commitments in each case advising the other parties heretoLenders of the details thereof.
(eh) The Closing Date If an Incremental Revolving Commitments Term Loan borrowed by a Borrower (other than a Foreign Obligor) hereunder would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, before the close of each accrual period ending after the fifth anniversary of the issue date of such Loan, the applicable Borrower shall be provided make such payments on the Closing Date Incremental Term Loan as required to prevent the Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent Term Loan from being treated as an “applicable to the initial Revolving Commitments and without any further amendment to this Agreementhigh yield discount obligation”.
Appears in 2 contracts
Sources: Credit Agreement (Abm Industries Inc /De/), Credit Agreement (Abm Industries Inc /De/)
Incremental Facilities. (a) The Parent Subject to Section 2.11(b), the Borrower and/or any Additional Borrower and any may by written notice to Agent elect to request the establishment of one or more Lenders Incremental Term Loan commitments (including New Lenders) may from time to time agree that such Lenders shall makethe “Incremental Term Loan Commitments”), obtain or increase the in an aggregate amount of their up to $70,000,000. Each such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Term Loans Loan Commitments shall be effective, which shall be a date not less than 30 days after the date on which such notice is delivered to the Agent. The opportunity to commit to provide all or Revolving a portion of the Incremental Term Loan Commitment shall be offered by the Borrower to any Eligible Incremental Lenders. To the extent any Eligible Incremental Lenders have provided a commitment to provide such Incremental Term Loan Commitment, the Borrower shall provide a copy of such commitment letter to the Agent for distribution to the existing Lenders and offer the existing Lenders the opportunity to provide such Incremental Term Loan Commitment on the same terms as set forth in such commitment letter (the date the Agent receives such commitment letter, the “Notice Date”). If the existing Lenders have not agreed in writing to provide such Incremental Term Loan Commitment within 15 days of the Notice Date, then the Eligible Incremental Lenders may provide the Incremental Term Loan Commitment on the terms of such commitment letter and subject to this Section 2.11. Any existing Lender approached to provide all or a portion of such Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan Commitment.
(b) Such Incremental Term Loan Commitments shall become effective, as of such Increased Amount Date, subject to the satisfaction of each of the following conditions:
(i) the Lenders have funded 100% of the aggregate amount of the Term Loan B Commitments of the Lenders; (ii) the Agent has obtained the commitment of one or more Incremental Term Loan Lenders to provide the applicable Incremental Term Loan and any such increased Revolving CommitmentsIncremental Term Loan Lenders, “Incremental Revolving Commitments” the Borrower and any facility under the Agent have signed an amendment to this Agreement pursuant to which such Incremental Term Loans or Incremental Revolving Commitments are made availableLoan Lenders agree to make, subject to the terms of this Agreement, a term loan to the Borrower (an “Incremental FacilityTerm Loan”) in an amount equal to its Incremental Term Loan Commitment and to otherwise evidence such Incremental Term Loan, in form and substance reasonably satisfactory to the Agent (each, a ”Joinder Agreement”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, ; (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist on such Increased Amount Date; (iv) the representations and is continuing as warranties of the date of entry into Credit Parties contained in this Agreement and the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or other Loan Documents shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respectsrespects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, except which representations and solely warranties shall be true and correct in all respects subject to such qualification) as of such Increased Amount Date to the same extent required by the lenders providing such Incremental Facility;
as though made on and as of that date (E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans both before and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement immediately after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentLoan), (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) except to the extent such consent would representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that such materiality qualifier shall not be required for an assignment applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender earlier date; and (iiv) the Borrower shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
have reached agreement with the lenders making the Incremental Term Loan (cthe “Incremental Term Loan Lenders”) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facilityinterest margins applicable to such Incremental Term Loan (which interest margins may be higher than, each Borrower shall borrow Revolving Loans under equal to, or lower than the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference interest margins applicable to the amount Term Loan set forth in this Agreement immediately prior to the date of each Type of Loan the making of such Borrower (and, in the case of Eurocurrency Loans or Incremental Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark TrancheLoan, as applicable) which would then and shall have been outstanding from communicated the amount of such Lender interest margins to the Agent. Anything to the contrary contained herein notwithstanding, if the all in yield (iincluding interest margins, interest floors, original issue discount, closing fees or other similar yield related discounts based on an assumed four-year to life maturity, but excluding any arrangement, underwriting or similar fees that are not shared with all of the Lenders or prospective lenders) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on (the “All In Yield”) that is to be applicable to such Incremental Facility Closing Date and (ii) Term Loan is 50 basis points or more higher than the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then All In Yield applicable to the Eurocurrency Term Loans or Adjusted hereunder immediately prior to the applicable Increased Amount Date (the amount by which the interest margins are higher, the “Excess”), then the All In Yield applicable to each applicable Class of Term SOFR Rate for Term Benchmark Loans, as applicable, Loans immediately prior to the Increased Amount Date shall be increased by the amount of the other Lenders in Excess minus 50 basis points, effective on the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Increased Amount Date, this Agreement shall be amended to and without the extent (but only to the extent) necessary to reflect the existence and terms necessity of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing any action by the Administrative Agent and the Parent Borrower and furnished to the other parties any party hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Rent the Runway, Inc.), Credit Agreement (Rent the Runway, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans (an “Incremental Term Facility”) or Revolving Commitments (any such increased “Increased Revolving Commitments”; together with any Incremental Term Facility, the “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental FacilityFacilities”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involvedincrease, (ii) the applicable Incremental Increased Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (wx) the applicable Incremental Term Maturity Date, (xy) the amortization schedule for such Incremental Term Loans Loans, and (yz) the Applicable Margin for such Incremental Term Loans; provided, that:
that (Ai) no Event of Default exists or would exist after giving effect to such Incremental Facility, (ii) on a pro forma basis after giving effect to the aggregate principal amount incurrence of any such Incremental Facility (or committed amountassuming, if applicable) such Incremental Facility consists of all Incremental Term Loans and Incremental Increased Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing such Increased Revolving Commitments are fully drawn as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (ydate) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to other permitted pro forma adjustment events and any Additional Credit Extension Amendment repayments of Indebtedness after the beginning of the relevant period but prior to or simultaneous with the incurrence of such Incremental Facility, (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Cx) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, 7.1 recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower then most recently ended for which financial statements are available;
described in Section 6.1(a) or (Db) have been delivered, (y) the Consolidated First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the end of such fiscal quarter shall be no greater than 3.00:1.00 and (z) the Consolidated Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the end of such fiscal quarter shall be no greater than 4.00:1.00, (iii) the representations and warranties set forth in no event Article IV shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, respects (except and solely that such materiality qualifier shall not be applicable to the extent any such representations and warranties are already qualified or modified by materiality, it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required by to be true and correct in all material respects only as of such specified date) immediately prior to, and after giving effect to, the lenders providing incurrence of such Incremental Facility;
, (Eiv) the weighted average life maturity date and Weighted Average Life to maturity Maturity of any such Incremental Term Facility shall be no earlier than (or the weighted average life same as) the maturity date and Weighted Average Life to maturity Maturity, respectively, of the Initial Term Loans, (v) the interest rates and amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder and (vi) any Increased Revolving Commitments shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) and any Incremental Term Loan Facility shall be on terms and pursuant to documentation, to the extent such terms and documentation are not consistent with, in the case of an Incremental Term Facility, the Term Facility (except in to the case of customary high-yield bridge loans which, subject to customary conditions extent permitted by clause (including no payment or bankruptcy event of defaultiv) and (v) above), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative AgentAgent (including as to the identity of the New Lenders); provided provided, that each if the total yield (calculated for both the Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower Loans and the lenders Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below)) shared with all providers of such Incremental Term Loans, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the Eurodollar Rate or ABR in respect of any Incremental Term Loans exceeds the total yield for the existing Loans (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the Loans shall be increased so that the total yield in respect of such Incremental Term Facility elect lesser payments;
Loans is no higher 0.50% greater than the total yield for the existing Term Loans. Notwithstanding the foregoing, (Hi) any Incremental without the consent of the Required Lenders, the aggregate amount of Increased Revolving Commitments obtained after the Closing Date pursuant to this paragraph, together with the aggregate amount of Incremental Term Loans obtained pursuant to this paragraph and the Revolving Loans in respect thereof amount of any Second Lien Incremental Loans, shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility not exceed $25,000,000 and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(Iii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no 5,000,000. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed or conditioned), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be reasonably satisfactory to the Administrative Agent andexecute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case form of any Incremental Revolving LoansExhibit H-3, the Issuing Lenders and the Swingline Lender and whereupon such bank, financial institution or other entity (iia “New Lender”) shall become a Lender under for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to the Revolving Facility, each the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Eurodollar Loans, of each Eurocurrency Tranche or Term Benchmark Eurodollar Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Eurodollar Base Rate applicable to any Eurocurrency Eurodollar Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Eurodollar Base Rate then applicable to the Eurocurrency Eurodollar Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Eurodollar Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Increased Facility Closing Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent and with the Parent Borrower Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders (including New Lenders) may from time occasions, by written notice to time agree the Administrative Agent, request the establishment of Incremental Commitments, provided that such Lenders shall make, obtain or increase the amount of their any Incremental Term Loans Commitments established hereunder shall not exceed the amount of additional Indebtedness permitted at the time such Incremental Commitments are established to be Incurred under Section 9.01(b)(i). Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under shorter period as may be agreed to by the Administrative Agent) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iii) the amount of the Incremental Commitments being requested (it being agreed that (A) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Commitment and (B) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and otherwise satisfy the requirements of Section 12.04(b)(i)).
(b) The terms and conditions of any Incremental Commitments and the Incremental Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility or Facilities involvedAgreement, identical to those of the Commitments and the Loans; provided that (i) if the Weighted Average Yield applicable to any Incremental Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield under the terms of this Agreement, as amended through the date of such calculation, with respect to Loans, then the Applicable Margin then in effect for Loans shall automatically be increased to the extent necessary to eliminate such excess, (ii) the applicable Average Life of any Incremental Facility Closing Date, Loans shall be no shorter than the remaining Average Life of the Loans and (iii) the applicable Borrower(s) and (iv) Maturity Date for any Incremental Loan shall not be earlier than the Final Maturity Date in effect on the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for date such Incremental Term Loans and (y) the Applicable Margin for such Loan is made. Any Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Commitments established pursuant to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable an Incremental Facility Activation DateAgreement that have identical terms and conditions, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Loans made thereunder, shall be designated as a separate Class of Incremental Commitments thereunder (and assuming, in the case Incremental Loans for all purposes of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;this Agreement.
(Dc) in no event The Incremental Commitments shall it be a condition effected pursuant to the effectiveness of, one or Borrowing under, any more Incremental Facility that any representation or warranty of any Loan Party be true Agreements executed and correct in all material respects, except and solely to the extent required delivered by the lenders Borrower, each Incremental Lender providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans Commitments and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments and the making of Loans thereunder, (Iii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date and (iii) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender (other than the Incremental Lenders party thereto), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) give effect to the extent such consent would be required for an assignment provisions of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)Section.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, a Lender (but only to the extent) necessary to reflect the existence and terms a Lender in respect of Commitments and Loans of the Incremental Term applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of a Lender (and a Lender in respect of Commitments and Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Class shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 5 to 2.08(a) and of the same extent applicable to effectiveness of any Incremental Commitments, in each case advising the initial Revolving Commitments and without any further amendment to this AgreementLenders of the details thereof.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Quicksilver Resources Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders (including New Lenders) occasions at any time after the Closing Date, the Borrowers may from time by written notice to time agree that such Lenders shall make, obtain or the Administrative Agent elect to request an increase to the amount of their Incremental Term Loans or Revolving existing Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”), by up to an aggregate amount not to exceed AUD550,000,000 for all Incremental Commitments (so that the sum of the Commitments plus the principal amount of Delayed Draw Term Loans or Incremental Revolving Commitments are made availablehereunder does not exceed AUD1,750,000,000). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowers propose that such Incremental Facility”)Commitments shall be effective, as applicable, by executing and delivering which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The 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 on any Increased Amount Date shall be in the minimum aggregate amount of AUD25,000,000, (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 Additional Credit Extension Amendment specifying 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) 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 “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 Commitments and the availability of any borrowings under any such Incremental Commitments shall be subject to the satisfaction of the following conditions precedent: (i) the amount of after giving pro forma effect to such increase Incremental Commitments and borrowings and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case use of Incremental Term Loans, (w) the applicable Incremental Term Maturity Dateproceeds thereof, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing (y) as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as last day of the applicable Incremental Facility Activation Datemost recent calendar quarter for which financial statements have been delivered pursuant to Section 6.1, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be Borrowers would have been in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, recomputed as of ; (ii) the last day of representations and warranties made or deemed made by the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) Borrowers in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects, ) on the effective date of such Incremental Commitments except and solely to the extent required by the lenders providing that such Incremental Facility;
representations and warranties expressly relate solely to an earlier date (Ein which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); (iii) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
: (Hx) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant if not previously delivered to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected copies certified by the Parent Borrower after the Closing Date; and
Secretary or Assistant Secretary (J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andor, 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 authorize such Incremental Revolving LoansCommitments, (y) customary opinions of counsel (which may be in substantially the same forms as delivered on the Closing Date) addressed to the Administrative Agent and 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 or New Lender made at least ten days prior to the applicable Increased Amount Date, the Issuing Borrowers shall have provided to such Lender or New Lender, and such Lender or New Lender 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 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 Beneficial Ownership Regulation shall have delivered, to 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 Swingline 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 under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date hereunder with respect to the Revolving Facility, each Borrower Incremental Commitment and the New Loans made pursuant thereto. The Administrative Agent shall borrow Revolving Loans under notify the relevant increased Revolving Commitments from each Lender participating in Lenders promptly upon receipt of the relevant increase in an amount determined by reference to the amount Borrowers’ notice of each Type of Loan of such Borrower Increased Amount Date and in respect thereof (andy) the Incremental Commitments and the New Lenders, and (z) in the case of Eurocurrency Loans or each notice during the Delayed Draw Term Benchmark Commitment Period, the respective interests in such Delayed Draw Term Lender’s Delayed Draw Term Loans, of in each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected case subject to the assignments contemplated by such Borrower on this paragraph. The fees payable by the Borrowers to Lenders upon any such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as Commitments shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to Borrowers at the other parties hereto.
(e) time of such increase. The Closing Date Incremental Revolving Commitments shall be provided on evidenced pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Closing Date Borrowers, the New Lenders and the Administrative Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as Incremental Revolving Commitmentsmay be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23, subject to the conditions set forth in Section 5 to approval of the same extent applicable to the initial Revolving Commitments and without any further amendment to this AgreementBorrowers (which approval shall not be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Syndicated Facility Agreement (MPT Operating Partnership, L.P.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower may, by written notice to the Administrative Agent and any one or more Lenders each Lender (including New Lenders) may from time with a copy to time agree that such Lenders shall makethe Collateral Agent), obtain or request, prior to the last day of the Revolving Period, an increase to the amount of their Incremental Term Loans or Revolving existing Commitments (any such increased Revolving increase, the “New Commitments, “Incremental Revolving Commitments” ”) by an amount not to exceed $400,000,000 (and the sum of the existing Commitments and any facility under which New Commitments shall not exceed $1,000,000,000 in the aggregate). Each such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying notice shall specify (i) the amount of such increase and the Facility or Facilities involvedNew Commitment, (ii) the applicable Incremental Facility Closing date (each, an “Increased Amount Date, (iii”) on which the applicable Borrower(s) and (iv) in Borrower proposes that the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving New Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans effective and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected approved in writing by the Administrative Agent and (iii) the Parent identity of each Lender or other Person (each, an “Increasing Lender”) to whom the Borrower proposes any portion of such New Commitments be allocated and furnished the amounts of such allocations (if then known); provided that any New Commitment shall first be offered to each existing Lender (pro rata) for a period of seven (7) Business Days prior to offering to any Person that is not an existing Lender. Such New Commitments shall become effective as of such Increased Amount Date if the Administrative Agent, the Required Lenders and each Lender whose Commitment is being increased thereby has consented thereto in their respective sole discretion and subject to any internal approvals; provided that (A) no Unmatured Event of Default, Event of Default or Borrowing Base Deficiency shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (B) the New Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender (if applicable), or one or more Joinder Supplements for any new Lender executed and delivered by the Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the Register; (C) the Borrower shall pay any applicable required fees in connection with the New Commitments; (D) the Borrower shall deliver or cause to be delivered any legal opinions or other parties heretocustomary closing documents (substantially consistent with the documents set forth in Section 3.01) reasonably requested by Administrative Agent or an Increasing Lender in connection with any such transaction; and (E) the effectiveness of any allocation of New Commitments to a non-Lender shall be subject to (i) the prior written consent of the Administrative Agent and (ii) the Collateral Agent’’s receipt of all documentation necessary for purposes of compliance with the applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Money Laundering Laws.
(eb) The Closing On any Increased Amount Date Incremental Revolving on which New Commitments shall be provided on the Closing Date as Incremental Revolving Commitmentsare effected, subject to the conditions set forth satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the Increasing Lenders, and each of the Increasing Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Advances Outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances will be held by existing Lenders and Increasing Lenders ratably in accordance with their Commitments after giving effect to the addition of such New Commitments to the Commitments, (ii) each New Commitment shall be deemed, for all purposes, a Commitment and each Advance made thereunder (a “New Advance”) shall be deemed, for all purposes, an As compensation for its activities hereunder and reimbursement for its expenses, the Servicer shall be entitled to be paid the Servicing Fee and reimbursed its reasonable out-of-pocket expenses as provided in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.04.
Appears in 1 contract
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableoccasions, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, request (i) the amount establishment of such increase and the Facility or Facilities involved, Incremental Revolving Commitments and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, Commitments; provided that (wA) the applicable aggregate amount of all the Incremental Term Maturity Date, Commitments established hereunder shall not exceed US$600,000,000 and (B) no Incremental Commitments may be established until after the earlier of (x) the amortization schedule for such Incremental Delayed Draw Term Loans Funding Date and (y) the Applicable Margin for Delayed Draw Term Commitment Termination Date. Each such notice shall specify (1) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loans; providedCommitments, that:
as applicable, shall be effective, which shall be a date not less than 10 Business Days (Aor such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (2) the aggregate principal amount (of the Incremental Revolving Commitments or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtas applicable, shall not exceed the Incremental Cap;
being requested (B) it being agreed that (x) with respect any Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assumingCommitment or Incremental Term Commitment may elect or decline, in the case of any Additional Credit Extension Amendment with respect its sole discretion, to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and provide such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 Commitment or Incremental Term Commitment and (y) no more than five Incremental Facility Closing Dates may be selected by any Person that the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation Company proposes to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under become an Incremental Facility (i) to the extent Lender, if such consent would Person is not then a Lender, must be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall Eligible Assignee and must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing Lenders Banks or the Swingline Lender, as the case may be, would be required for an assignment to such Person pursuant to Section 10.04).
(b) The terms and conditions of any Incremental Revolving Commitment and the Swingline Lender Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and conditions of any Incremental Term Loans shall be such as the Company and the applicable Incremental Term Lenders shall agree upon; provided that (i) the Incremental Term Loans shall be extensions of credit to the Company that are guaranteed only by the Subsidiary Guarantors, (ii) the Incremental Term Loans shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.rank pari passu in right of payment with the other Loans and the other Loan Document Obligations and shall not be secured [[3851767]]
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Administrative AgentCompany, on each Incremental Facility Closing Date Lender providing such Incremental Commitments and the Administrative Agent (with respect the Administrative Agent hereby agreeing that its consent thereto shall not be unreasonably withheld, conditioned or delayed); provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the Revolving Facilitymaking of any Loans thereunder to be made on such date, each Borrower shall borrow Revolving Loans under (ii) on the relevant increased Revolving Commitments from each Lender participating date of effectiveness thereof, the representations and warranties of the Loan Parties set forth in the relevant increase Loan Documents shall be true and correct in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, A) in the case of Eurocurrency Loans the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date of effectiveness, except in the case of any such representation or Term Benchmark Loanswarranty that expressly relates to a prior date, in which case such representation or warranty shall be so true and correct on and as of each Eurocurrency Tranche or Term Benchmark Tranchesuch prior date, and (iii) the Company shall have delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as applicable) which would then shall have been outstanding from reasonably be requested by the Administrative Agent in connection with any such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such transaction. Each Incremental Facility Closing Date Agreement may, without the consent of any Lender, effect such amendments to this Agreement and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders Loan Documents as may be necessary or appropriate, in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration opinion of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished Company, to give effect to the other parties hereto.
(e) The Closing Date provisions of this Section, including any amendments necessary or appropriate to treat the Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Term Commitments and without any further amendment to this Agreement.the Incremental [[3851767]]
Appears in 1 contract
Sources: Credit Agreement (Westinghouse Air Brake Technologies Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree during the Revolving Availability Period, the establishment of Incremental Class A Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that such Lenders shall make, obtain or increase the aggregate amount of their all Incremental Class A Revolving Commitments established hereunder shall not exceed $125,000,000 and the aggregate amount of all Incremental Term Loans or Commitments established hereunder shall not exceed $200,000,000. Each such notice shall specify (A) the date on which the Parent Borrower proposes that the Incremental Class A Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such or the Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”)Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Class A Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Class A Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Class A Revolving Commitment or Incremental Term Loans Commitment and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by Person that the Parent Borrower as proposes to become an Incremental Lender, if such Person is not then a “Limited Conditionality Acquisition”Lender, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall must be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect reasonably acceptable to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment proposed Incremental Class A Revolving Lender, the Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Incremental Class A Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Class A Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Class A Revolving Commitments and Loans. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Tranche B Term Commitments and the Tranche B Term Loans; provided that (i) if the Weighted Average Yield applicable to any Incremental Term Loans exceeds by more than 0.25% 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 Incremental Revolving Commitments that Tranche B Term Loans, then the Applicable Rate then in effect for Tranche B Term Loans shall automatically be increased to eliminate such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))excess, with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Eii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Tranche B Terms Loans, (iii) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Tranche B Term Facility);
Maturity Date, (Fiv) all except as set forth above, the Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of be treated no more favorably than the Collateral with the Tranche B Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except in each case, including with respect to pricing mandatory and fees or as otherwise set forth in this Section 2.25(a), all voluntary prepayments) provided that the terms of any and conditions applicable to Incremental Term Facility, if not consistent with Loans maturing after the latest Maturity Date applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to any Loans outstanding or Commitments in effect hereunder immediately prior to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect establishment of such Incremental Term Facility elect lesser payments;
may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after such Maturity Date and (HB) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the extent the terms hereof otherwise applicable to such Incremental Facility are inconsistent with the terms applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
Tranche B Term Loans (I) without the consent of the Administrative Agent, (x) each increase effected except as otherwise permitted pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned)), such terms shall be reasonably satisfactory to the Administrative Agent, and (vi) any Incremental Facility shall have the same Guarantees as, shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Loans (except to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably). Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Holdings, the Parent Borrower, 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 and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct on and as of such date, (iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, (A) the First Lien Leverage Ratio, calculated on a pro forma basis, shall not exceed 3.00 to 1.00 and (B) Holdings and the Parent Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.12 and 6.13, (iv) the Parent Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Class A Revolving Commitment, (A) such Incremental Class A Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Class A Revolving Commitment, shall increase) the Class A Revolving Commitment of such Incremental Lender and (B) the total Class A Revolving Commitments shall be increased by the amount of such Incremental Class A Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Class A Revolving Commitment, the Class A Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Class A Revolving Applicable Percentage of all the Class A Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Class A Revolving Lender holding such Incremental Class A Revolving Commitment, and each such Incremental Class A Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders or all the Class A Revolving Lenders (including such Incremental Class A Revolving Lenders), as applicable, ratably in accordance with their Class A Revolving Applicable Percentages or Class B Revolving Applicable Percentages, as applicable, after giving effect to the effectiveness of such Incremental Class A Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Parent Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Parent Borrower referred to in paragraph (a) above and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Class A Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableCommitments, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Class A Applicable Percentages and Class B Applicable Percentages of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower Revolving Lenders after giving effect thereto and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall assignments required to be amended made pursuant to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
paragraph (e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementabove.
Appears in 1 contract
Sources: Credit Agreement (Trimas Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) Representative may from time to time, upon at least ten (10) Business Days’ prior written notice to the Administrative Agent in each case, at any time agree that such Lenders shall makeprior to the Maturity Date, obtain or increase the amount of their Incremental Term Loans or Aggregate Revolving Commitments (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental Revolving Increase”) and/or add one or more tranches of term loans (each an “Incremental Term Facility”); each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower Representative by an agreement in writing entered into by the applicable Borrowers, as applicable, by executing and delivering to the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an Additional Credit Extension Amendment specifying “Incremental Facility Amendment”); provided that:
(i) the sum of the cumulative aggregate original principal amount of such increase and all Incremental Facilities established under this Section 2.01(c) plus the Facility or Facilities involved, (ii) the applicable cumulative aggregate original principal amount of all Alternative Incremental Facility Closing DateIndebtedness incurred under Section 8.03(r) shall not exceed, at the time any such Incremental Facility is established (iii) the applicable Borrower(s) and (iv) in giving effect thereto), as the case of Incremental Term Loansmay be, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
sum of: (A) the aggregate principal amount greater of (1) $275,000,000 and (2) Consolidated EBITDA for the most recently ended period of four fiscal quarters for which the Borrowers have delivered financial statements pursuant to Section 7.01(a) or committed amount(b), if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
plus (B) (x) with respect to any Incremental Term Loans being incurred to finance such additional amount that would not cause the Consolidated Senior Secured Leverage Ratio, calculated on a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and Pro Forma Basis after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any such Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and treating any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that Increase as fully drawn for such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)purpose), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for to be greater than 3.00 to 1.00 (which financial statements are available;
amount under this clause (DB) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than deemed incurred, and the weighted average life Consolidated Senior Secured Leverage Ratio calculated as aforesaid, prior to maturity giving effect to any substantially concurrent incurrence of Incremental Facilities under the Initial Term Facility preceding clause (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of defaultA), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fii) all Incremental Term Loans no Default shall have occurred and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment be continuing, and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement no Default would exist after giving effect to any Incremental Facility, both on the date on which such Additional Credit Extension AmendmentIncremental Facility is requested and on the date on which such Incremental Facility is to become effective;
(I) without the consent of the Administrative Agent, (xiii) each increase effected pursuant to this paragraph Incremental Facility shall be in a minimum amount of at least $50,000,000 20,000,000 and in integral multiples of $5,000,000 in excess thereof (yor such lesser amounts as the Administrative Agent may agree);
(iv) no more than five existing Lender shall be under any obligation to provide any Incremental Facility Closing Dates may Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such ▇▇▇▇▇▇’s sole and absolute discretion;
(v) each Person providing any Incremental Facility Commitment shall be an institution selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender Representative that elects to provide Commitments under qualifies as an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be Eligible Assignee and is reasonably satisfactory acceptable to the Administrative Agent and, in the case of any such institution providing an Incremental Revolving LoansIncrease, the Issuing Lenders L/C Issuer and the Swingline Lender Swing Line Lender;
(vi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (iiB) shall become a Lender documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement pursuant in form and substance acceptable to the Administrative Agent;
(vii) the Administrative Agent shall have received:
(1) a certificate of the applicable Borrowers dated as of the effective date of such Incremental Facility signed by a Responsible Officer of the Borrower Representative (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of each applicable Borrower approving such Incremental Facility, and (2) certifying that, before and after giving effect to such Incremental Facility, (x) the representations and warranties contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) on and as of the date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an Additional Credit Extension Amendment.earlier date, in which case they shall be true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) as of such earlier date, and (y) no Default exists;
(c2) Unless otherwise agreed in the case of an Incremental Term Facility, a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Term Facility the Borrowers are in compliance with the financial covenants in Section 8.11 on a Pro Forma Basis;
(3) such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility;
(4) to the extent requested by the Administrative Agent, on customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Closing Commitment), dated as of the effective date of such Incremental Facility; and
(5) such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(viii) in the case of an Incremental Revolving Increase:
(1) the terms and conditions (including interest rate, interest rate margins, fees (other than arrangement, structuring, underwriting and similar fees not paid generally to all Lenders under such Incremental Revolving Increase), prepayment terms and final maturity) of such Incremental Revolving Increase shall be the same as the terms applicable to the Aggregate Revolving Commitments hereunder;
(2) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving Commitments pursuant to this Section 2.01(c) and to include thereon any Person that becomes a Lender with a Revolving Commitment pursuant to this Section 2.01(c); and
(3) on the effective date of such Incremental Revolving Increase, the existing Lenders with Revolving Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Revolving Increase and such assignments and adjustments, each Revolving Lender (including the Lenders providing such Incremental Revolving Increase) will hold its pro rata share (based on its Applicable Revolving Percentage of the increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans; and
(ix) in the case of an Incremental Term Facility;
(1) the interest rate, interest rate floors, interest rate margins, fees, discount, prepayment premiums, mandatory prepayments, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Borrower Representative and the Lenders providing such Incremental Term Facility; provided that:
(1) the final maturity of such Incremental Term Facility shall not be earlier than the later of (x) the Maturity Date and (y) the final maturity of any other Incremental Term Facility;
(2) the weighted average life to maturity of such Incremental Term Facility shall not be less than the remaining weighted average life to maturity of the Term Loans or any other Incremental Term Facility (in each case, as determined by the Administrative Agent in accordance with customary financial practice); and
(3) unless approved by the Administrative Agent, such Incremental Term Facility is on terms and conditions that are not materially more restrictive than the terms and conditions applicable to the Revolving Commitments, the Term Loans and any other Incremental Term Facility hereunder;
(2) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(3) Schedule 2.01 shall be deemed revised to add the commitments and commitment percentages of the Lenders providing the Incremental Term Facility; and
(4) such Incremental Term Facility shall share ratably in any prepayments of the Term Loans and any other Incremental Term Facilities pursuant to this Agreement (or otherwise provide for more favorable prepayment treatment for the Term Loans and any then outstanding other Incremental Term Facilities) and shall have ratable voting rights with the Term Loans and any other Incremental Term Facilities (or otherwise provide for more favorable voting rights for the Term Loans and any then outstanding other Incremental Term Facilities). The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the Collateral Documents and any guarantees provided with respect to the Revolving FacilityObligations. The Lenders hereby authorize the Administrative Agent to enter into, each Borrower and the Lenders agree that this Agreement and the other Loan Documents shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (andbe amended by, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended Amendments to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower Representative deem necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.01(c) (including by adding provisions related to voluntary and furnished mandatory prepayments of Incremental Term Loans as deemed appropriate by the parties to any Incremental Facility Amendment). The Administrative Agent shall promptly notify each Lender as to the other parties hereto.
(eeffectiveness of each Incremental Facility Amendment. This Section 2.01(c) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject supersede any provisions in Section 2.13 or 11.01 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions after the Closing Date, by written notice to the Administrative Agent, request (including New Lendersi) may from time during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that the aggregate amount of the Incremental Commitments established under this Section 2.21 on any date, together with the aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) on such date, shall not exceed an amount equal to time agree that (a) the Base Incremental Amount in effect on such Lenders shall makedate, obtain or increase plus (b) the amount of their Incremental voluntary prepayments of Term Loans or Revolving pursuant to Section 2.11(a) (other than those financed with the proceeds of Indebtedness) prior to such date (less the aggregate amount of Incremental Commitments and Alternative Incremental Facility Indebtedness established prior to such date in reliance on this amount), plus (any c) an additional amount subject to the Maximum Incremental Ratio Amount as of such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under date. Each such notice shall specify (A) the date on which such Incremental Term Loans or the Company proposes that the Incremental Revolving Commitments are made available, an “or the Incremental Facility”)Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Facility or Facilities involvedCompany proposes to become an Incremental Lender, (ii1) the applicable Incremental Facility Closing Dateif such Person is not then a Lender, (iii) the applicable Borrower(s) must be an Eligible Assignee and (iv2) in the case of an Incremental Revolving Commitment, must be reasonably satisfactory to the Administrative Agent, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Company and the Incremental Revolving Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term LoansFacility of a Class and the Incremental Term Loans to be made thereunder shall be, (w) except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the Term Maturity Date, Commitments and the Term Loans of such Class; provided that (xi) the upfront fees, interest rates and floors and, subject to the other restrictions below, amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect applicable to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred Facility and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to determined by the applicable Additional Credit Extension Amendment (including Company and the making of any Incremental Term Loans and any Lenders providing the relevant Incremental Revolving Commitments thereunder Term Commitments, (and assuming, ii) except in the case of any Additional Credit Extension Amendment with respect an Incremental Term Facility effected as an increase to Incremental Revolving Commitments that such commitments are fully drawn) without the netting an existing Class of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))Term Loans, with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans that are “term A loans” shall be no earlier shorter than the remaining weighted average life to maturity of the Terms Loans that are “term A loans” with the latest Maturity Date and the weighted average life to maturity of any Incremental Term Loans that are “term B loans” shall be no shorter than the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter remaining weighted average life to maturity than of the Terms Loans that are “term B loans” with the latest Maturity Date, (iii) if the all-in yield relating to any Incremental Term Loan that is a “term B loan” exceeds the all-in yield relating to the Initial Term FacilityB Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase or decrease, as applicable, in the interest rate floor applicable to the Initial Term B Loans would result in an increase or decrease, as applicable, in an interest rate then in effect for the Initial Term B Loans hereunder);
(F) all ), then the Applicable Rate relating to the Initial Term B Loans shall be adjusted so that the all-in yield relating to such Incremental Term Loans shall not exceed the all-in yield relating to the Initial Term B Loans by more than 0.50% and (iv) no Incremental Term Maturity Date relating to “term A loans” shall be earlier than the Term A Maturity Date and no Incremental Term Maturity Date relating to “term B loans” shall be earlier than the Term B Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Revolving Incremental Term Loans made in respect thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall rank be secured by the Collateral on a pari passu in right of payment and right of security in respect of basis with the Liens on the Collateral with securing the Term Loans other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
(G) except with respect effected pursuant to pricing one or more Incremental Facility Amendments executed and fees or as otherwise set forth in this Section 2.25(a), all terms of any delivered by the Company and each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph effective unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 no Default (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andor, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving LoansFacility, no Event of Default under clause (a), (b), (h) or (i) of Article VII) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the Issuing Lenders representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Swingline Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.21 (including, without limitation, favorable amendments to any existing Class to ensure fungibility between any Incremental Commitments (or loans thereunder) and such existing Class).
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall become constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender under this Agreement pursuant and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Additional Credit Extension Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cg) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e).
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Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower and any time, on one or more Lenders (including New Lenders) may from time occasions pursuant to time agree that such Lenders shall make, obtain or an Incremental Facility Amendment increase the aggregate amount of their Incremental Term Loans Commitments of any existing Class of Commitments or Revolving establish a new Class of Commitments (any such increased increase or new Class of Commitments, an “Incremental Revolving CommitmentsFacility” and the loans thereunder, “Incremental Revolving CommitmentsLoans”) in an aggregate principal amount not to exceed $50,000,000; provided that any new Class of Commitments shall be a “last-out” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility that ranks junior in right of payment and/or security to this ABL Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, further, that:
(Ai) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, Loans shall not exceed the Incremental Capbe available in Dollars only;
(ii) unless the Administrative Agent otherwise agrees, no Incremental Revolving Facility may be less than $5,000,000;
(iii) except as separately agreed from time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such Incremental Revolving Commitment shall be within the sole and absolute discretion of such Lender;
(iv) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as an Incremental Revolving Lender;
(v) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to this ABL Facility, except (A) with respect to structuring, commitment and arranger fees or other similar fees that may be agreed to among the Borrower and the Incremental Revolving Lenders and (B) (x) with respect to any “last-out” Incremental Term Loans being incurred Revolving Facility that ranks junior in right of payment and/or security to finance a Permitted Acquisition or a similar permitted Investment designated by this ABL Facility, such Incremental Revolving Facility (x) shall be on terms (other than those described in clauses (y) and (z) below) reasonably satisfactory to the Parent Borrower as Administrative Agent and subject to customary terms and conditions for “last-out” asset based credit facilities, (y) may have interest rate margins, unused line fees, a “Limited Conditionality Acquisition”, LIBOR floor” and/or “ABR floor” and other economic terms that are agreed to among the Borrower and the Incremental Revolving Lenders and (z) shall have a later scheduled maturity date than the Final Maturity Date;
(vi) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, shall exist immediately prior to and or after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or such Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Evii) the weighted average life to final maturity of any Incremental Term Revolving Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);Final Maturity Date; and
(Fviii) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall Facility may rank pari passu or junior in right of payment and right of security pari passu or junior in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except priority with respect to pricing and fees or proceeds of Revolving Credit Collateral (as otherwise set forth defined in this Section 2.25(athe Intercreditor Agreement), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent, any Letter of Credit Issuer and the Swingline Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 shall have consented (such consent not to be unreasonably withheld, delayed or conditioned), ) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.04(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Incremental Revolving Lender providing a portion of any Incremental Revolving Commitment shall be reasonably satisfactory execute and deliver to the Administrative Agent andand the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, (i) each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement, (ii) all Incremental Revolving Commitments shall become Commitments for all purposes in connection with this Agreement and (iii) all Incremental Revolving Loans shall become U.S. Loans for all purposes in connection with this Agreement.
(d) As conditions precedent to the case effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Issuing Lenders and the Swingline Lender and Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall become have received, from each Additional Revolving Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Additional Revolving Lender, and (iii) the Administrative Agent shall have received a Lender under this Agreement pursuant certificate of the applicable Borrowers signed by Responsible Officers thereof:
(1) certifying and attaching a copy of the resolutions adopted by the governing body or Board of Directors of the applicable Borrowers approving or consenting to an Additional Credit Extension Amendmentsuch Incremental Revolving Facility or Incremental Revolving Loans, and
(2) to the extent applicable, certifying that the condition set forth in clause (a)(vi) above has been satisfied.
(ci) Unless otherwise agreed by Upon the Administrative Agent, on each implementation of any Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower then-existing Lender will automatically and without further act be deemed to have assigned to each Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such existing Lender’s participations hereunder in outstanding Letters of Credit or Swingline Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Revolving Lender) participations hereunder in Letters of Credit or Swingline Loans shall borrow Revolving Loans under be held ratably on the relevant increased Revolving basis of their respective Commitments from each Lender participating of the applicable Class (after giving effect to any increase in the relevant increase in an amount determined by reference Commitment pursuant to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicablethis Section 2.23) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount existing Lenders of the applicable Class shall assign Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Loans, in each case, to the extent necessary so that all of the Lenders of such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by Class participate in each outstanding borrowing of Loans pro rata on the basis of their respective Commitments of such Borrower had been proportionately increased. The Eurocurrency Rate applicable Class (after giving effect to any Eurocurrency Loan or Adjusted Term SOFR Rate for increase in the Commitment pursuant to this Section 2.23); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (e).
(f) On the date of effectiveness of any Term Benchmark LoanIncremental Revolving Facility, the Letter of Credit Sublimit and the Swingline Sublimit permitted hereunder shall increase by an amount, if any, agreed upon by the (i) Administrative Agent, (ii) the Letter of Credit Issuer and the Swingline Lender, as applicable, borrowed pursuant to and (iii) the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)Borrower.
(dg) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and any other amendments to this Agreement and the other Credit Documents as may be necessary in order to establish new Classes in respect of Loans or Commitments increased or extended pursuant to this Section 2.23 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes, in each case on terms consistent with this Section 2.23.
(h) Notwithstanding anything to the contrary in this AgreementSection 2.23 or in any other provision of any Credit Document, each if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance a Permitted Acquisition and the parties hereto hereby agrees thatIncremental Revolving Lenders so agree, on each Incremental Facility Closing Date, this Agreement the availability thereof shall be amended subject to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans customary “SunGard” or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto“certain funds” conditionality.
(ei) The Closing Date Incremental Revolving Commitments This Section 2.23 shall be provided on the Closing Date as Incremental Revolving Commitments, subject supersede any provision in Section 2.16 or 9.08 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower and any time, on one or more Lenders (including New Lenders) may from time occasions pursuant to time agree that such Lenders shall make, obtain an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of their Incremental the Term Loans or Revolving Commitments of any existing Class by requesting new commitments to provide such Term Loans (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans new Class or Incremental Revolving Commitments are made availableincrease, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any 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 such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) i.e., by conforming or adding a term to the amount of such increase and the Facility or Facilities involved, (ii) then-outstanding Term Loans pursuant to the applicable Incremental Facility Closing DateAmendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (iiibut not the substance) of the applicable Borrower(sagreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (ivtaken as a whole) at the time of incurrence or issuance (as determined by the Borrower in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Capgood faith);
(Bv) (x) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans being incurred on any date after the Sixth Amendment Effective Date that is on or prior to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and day that is continuing as six months after the Seventh Amendment Effective Date in an aggregate principal amount in excess of the date greater of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (x) $105,000,000 and (y) otherwise, as 0.75% of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed Consolidated Total Assets as of the last day of the most recently ended fiscal quarter Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of syndicated floating rate Dollar-denominated Term Loans that are pari passu with the Term B-4 Loans in right of payment and with respect to security, (B) is originally incurred in reliance on the Ratio Based Incremental Amount (but not any reclassification thereunder), (C) is scheduled to mature prior to the date that is one year after the Maturity Date of the Parent Borrower for which financial statements are availableTerm B-4 Loans and (D) is not incurred or established in connection with a Permitted Acquisition or any other Investment permitted hereby (the foregoing sub-clauses (A) through (D), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.75% higher than the Effective Yield applicable to any Term B-4 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Floor or Alternate Base Rate floor) with respect to the applicable Term B-4 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.75% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-4 Loan due to the application or imposition of an Alternate Base Rate floor or other benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Floor or Alternate Base Rate floor applicable to such Term B-4 Loan;
(Dvi) in no event shall it be a condition subject to the effectiveness ofPermitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the then-existing Latest Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or Borrowing underas expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans, the Term B-3 Loans or the Term B-4 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility that any representation or warranty of any Loan Party be true may otherwise have an amortization schedule as determined by the Borrower and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Eix) subject to clause (v) above, to the weighted average life to maturity of extent applicable, any fees payable in connection with any Incremental Term Facility shall be no earlier than determined by the weighted average life to maturity of Borrower and the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term arrangers and/or lenders providing such Incremental Facility);
(FA) all any Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security in respect of or may be unsecured (and to the Collateral with extent the Term Loans and relevant Incremental Facility is secured by the Revolving Loans and none of the obligors or guarantors with respect thereto Collateral, it shall be a Person that subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan PartyParty or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(Gxi) except any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term Loans, the Term B-3 Loans and/or the Term B-4 Loans), greater than pro rata basis with respect to pricing and fees prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or as otherwise set forth Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.25(a2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 7.01(a), (f) or (g)) shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all terms material respects on and as of the date of the initial borrowing or establishment of such Incremental Facility; provided that (I) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the date of initial funding of such Incremental Facility; provided, further, that with respect to any Limited Condition Transaction, except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date of the Borrowing of any Incremental Term FacilityLoans that will be of the same Class as any then-existing Class of Term Loans, if not consistent with and notwithstanding anything to the applicable existing Term Facilitycontrary set forth in Section 2.08 or 2.13 above, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility Loans shall be added to (and reasonably satisfactory to constitute a part of, be of the Administrative Agent; provided 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 Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of Lender providing such Incremental Term Facility elect lesser payments;
Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (Ha)(xiv) any may result in new Incremental Revolving Commitments and Term Loans having Interest Periods (the Revolving Loans in respect thereof shall duration of which may be pursuant to the terms hereof otherwise less than one month) that begin during an Interest Period then applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent outstanding LIBO Rate Loans or Term Benchmark Loans of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount relevant Class and which end on the last day of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionsuch Interest Period.
(b) Any New Lender Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such other lender being called an “Additional Lender”); provided that elects the Administrative Agent shall have a right to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldwithheld or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, delayed or conditionedfurther, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), shall be reasonably satisfactory mutatis mutandis, to the Administrative Agent and, in same extent as if the case relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendmentassignment.
(c) Unless otherwise agreed Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent, on each Agent to evidence and effectuate such Incremental Facility Closing Date with respect to Commitment. On the Revolving Facilityeffective date of such Incremental Commitment, each Borrower Additional Lender shall borrow Revolving Loans under the relevant increased Revolving Commitments from each become a Lender participating for all purposes in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)connection with this Agreement.
(d) Notwithstanding anything As conditions precedent to the contrary in this Agreement, each effectiveness of the parties hereto hereby agrees that, on each any Incremental Facility Closing Dateor, this Agreement subject to Section 1.10, the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall be amended 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 extent Administrative Agent shall be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (but only to the extent“Administrative Questionnaire”) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the Parent Borrower and furnished applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Facility or Incremental Term Loans, (iv) the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other parties heretoitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Closing Date Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Revolving Commitments Facility 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 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.22.
(f) This Section 2.22 shall be provided on the Closing Date as Incremental Revolving Commitments, subject supersede any provision in Section 2.18 or 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased increase, the “New Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments denominated in Dollars (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 (so that the sum of the Total Revolving Commitments” and any facility under which such Incremental Commitments plus the principal amount of Dollar Term Loans or Incremental Revolving Commitments are made availablehereunder does not exceed $2,000,000,000). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Facility”)Commitments shall be effective, as applicable, by executing and delivering which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent an Additional Credit Extension Amendment specifying and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (ix) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $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; 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 increase 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 (z) any Lender or other Person that is an Eligible Assignee (each, a “New Revolving Lender” or “New Term Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Facility Administrative Agent (such approval not to be unreasonably withheld or Facilities involveddelayed), (ii) the applicable Incremental Facility Closing Dateand, (iii) the applicable Borrower(s) and (iv) in the case of Incremental a New Revolving Commitment, the Issuing Lender and the Swingline Lender (each of which approvals shall not be unreasonably withheld), unless such New Revolving Lender is an existing Lender (other than a Defaulting Lender) with a Revolving 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 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 that is a separate tranche shall be no earlier than the Dollar Term Loan Maturity Date for the existing Dollar Term Loans and the weighted average life to maturity of such New Term Loans shall not be shorter than the weighted average life to maturity of the existing Dollar Term Loans, and such New Term Loans shall not have any scheduled amortization payments, (wb) share ratably in any prepayments of the applicable existing Dollar Term Facility, unless the Borrower and the New Term Lenders in respect of such New Term Loans elect lesser payments and (c) otherwise be identical to the existing Dollar Term Loans or reasonably acceptable to the Administrative Agent, the Borrower and each New Term Lender. The effectiveness of any Incremental Term Maturity Date, Commitments and the availability of any borrowings under any such Incremental Commitments shall be subject to the satisfaction of the following conditions precedent: (x) the amortization schedule for after giving pro forma effect to such Incremental Term Loans Commitments and borrowings and the use of proceeds thereof, (yi) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing (ii) as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as last day of the applicable Incremental Facility Activation Datemost recent calendar quarter for which financial statements have been delivered pursuant to Section 6.1, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be would have been in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, recomputed as of ; (y) the last day of representations and warranties made or deemed made by the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects, ) on the effective date of such Incremental Commitments except and solely to the extent required by the lenders providing that such Incremental Facility;
representations and warranties expressly relate solely to an earlier date (Ein which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (z) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments; provided that and (ii) a customary opinion of counsel to the Borrower (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new Notes executed by the Borrower, payable to any new Lender, and replacement Notes executed by the Borrower, payable to any existing Lenders. On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each Incremental Term Facility of the Revolving Lenders shall share assign to each of the New Revolving Lenders, and each of the New Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Lender shall become a Lender with respect to its New Revolving Commitment and all matters relating thereto. On any mandatory prepayments Increased Amount Date on which any New Term Commitments are effected, subject to the satisfaction of the applicable foregoing terms and conditions, (i) each New Term Facility unless Lender shall make a Loan to the Parent Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment, and (ii) each New Term Lender shall become a Dollar Term Lender hereunder with respect to the New Term Commitment and the lenders New Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect of such Incremental Term Facility elect lesser payments;
thereof (Hy) any Incremental the New Revolving Commitments and the New Revolving Loans Lenders or the New Term Commitments and the New Term Lenders, as applicable, and (z) in respect thereof the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this paragraph. The fees payable by Borrower upon any such Incremental 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 the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by the Borrower, the New Revolving Lenders or New Term Lenders, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments2.23, subject to the conditions set forth in Section 5 to approval of the same extent applicable to the initial Revolving Commitments and without any further amendment to this AgreementBorrower (which approval shall not be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (MPT Operating Partnership, L.P.)
Incremental Facilities. (a) The Parent Borrower and/or may, any Additional Borrower and any one time or more Lenders (including New Lenders) may from time to time agree that such Lenders shall makeafter the Funding Date, obtain by written notice to the Administrative Agent (an “Incremental Facility Request”) request (x) the establishment of incremental or increase the amount of their additional term loan facilities (each, an “Incremental Term Loans Facility”, the commitments thereunder, the “Incremental Term Commitments” and the loans thereunder, the “Incremental Term Loans”) and (y) the establishment of incremental or additional revolving loan facilities (each, an “Incremental Revolving Commitments (any such increased Revolving CommitmentsFacility”, the commitments thereunder, the “Incremental Revolving Commitments” and any facility under which the loans thereunder, the “Incremental Revolving Loans”). Any such Incremental Facility may be implemented by increasing the amount of loans and commitments under an existing Facility or by adding a new facility to this Agreement. Subject to the terms and conditions set forth in this Section 2.20, the Incremental Term Loans Facilities shall be funded or the Incremental Revolving Commitments are made available, an “shall become available on the relevant Increased Amount Date; provided that no Incremental Facility”), as applicable, by executing and delivering Facility shall be incurred on such date to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) extent that the aggregate principal amount (or committed amount, if applicable) of all such Incremental Term Loans and Incremental Revolving Commitments, together Facility when combined with the aggregate principal amount of any Permitted all Incremental Facilities and Incremental Equivalent Debt, shall not exceed Debt incurred prior to such date exceeds the Incremental Cap;sum of:
(i) the greater of (A) $690,000,000 and (B) 100% of LTM EBITDA (xthe “Free and Clear Incremental Amount”), plus
(ii) an amount equal to the aggregate principal amount of all voluntary prepayments (but, with respect to the Initial Revolving Facility or any Incremental Revolving Facility, only to the extent such voluntary prepayment is accompanied by a permanent reduction of the Initial Revolving Commitments or applicable Incremental Revolving Commitments) of the Initial Revolving Loans, Initial Term Loans being incurred or any Incremental Loans or Incremental Equivalent Debt that, in each case, is secured on a pari passu basis with the Initial Facilities prior to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into such incurrence, in each case, so long as an such voluntary prepayment was not funded with the applicable acquisitionproceeds of Long Term Debt (the “Voluntary Prepayment Amount”), merger or similar agreement governing plus
(iii) an amount such acquisition or (y) otherwisethat, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making incurrence of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred such amount and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting use of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (xA) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving LoansFacility that is secured on a pari passu basis with the Initial Facilities, the Issuing Lenders and First Lien Net Leverage Ratio, determined on a Pro Forma Basis for the Swingline Lender and (ii) shall become a Lender under this Agreement most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to an Additional Credit Extension Amendment.
Section 5.04, does not exceed 3.25:1.00, (cB) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loansany Incremental Facility that is secured on a junior basis to the Initial Facilities, the Secured Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then the Borrower have been outstanding from such Lender if delivered pursuant to Section 5.04, does not exceed 3.50:1.00 and (iC) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such in the case of any Incremental Facility Closing Date and that is unsecured, the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, is greater than 2.00:1.00 (ii) provided that the aggregate amount of each Indebtedness for purposes of such Type, Eurocurrency Tranche calculation of the First Lien Net Leverage Ratio or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark LoanSecured Net Leverage Ratio, as applicable, borrowed pursuant shall (1) not include any principal amount of Incremental Facilities and Incremental Equivalent Debt which is being incurred simultaneously or substantially simultaneously by utilizing the Free and Clear Incremental Amount and (2) assume the Incremental Revolving Commitments, if applicable, are fully drawn) (the “Incurrence-Based Incremental Amount”, and together with the Free and Clear Incremental Amount and the Voluntary Prepayment Amount, the “Incremental Availability Amount”). The Borrower may elect to incur any Incremental Facility or Incremental Equivalent Debt by utilizing the preceding sentence Incurrence-Based Incremental Amount, the Free and Clear Incremental Amount, the Voluntary Prepayment Amount, or any combination thereof. For purposes of the forgoing incurrence test, it is understood and agreed that the proceeds of the applicable Incremental Facility shall equal not be netted against the Eurocurrency Rate then applicable to Indebtedness included in the Eurocurrency Loans calculation of the First Lien Net Leverage Ratio or Adjusted Term SOFR Rate for Term Benchmark LoansSecured Net Leverage Ratio, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(db) Notwithstanding anything Each such Incremental Facility Request shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments and Incremental Loans shall be made available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the contrary in this Agreement, each Administrative Agent (or such lesser number of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment days as may be effected in writing agreed to by the Administrative Agent and in its sole discretion). The Borrower shall notify the Parent Borrower and furnished Administrative Agent in writing of the identity of each Lender or other Person (each, an “Incremental Lender”) to whom the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments have been allocated, which allocation shall be provided on made at the Closing Date Borrower’s sole discretion. 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 (it being understood that the Borrower has no obligation to approach any Lender, and no Lender is committing to provide any Incremental Commitment until such time as such Lender agrees in writing to provide all or a portion of the applicable Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this AgreementCommitment).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions after the Closing Date, by written notice to the Administrative Agent, request:
(including New Lendersi) may from time to time agree that such Lenders shall make, obtain or an increase the amount of their Incremental Term Loans or in any Revolving Commitments (any such increased each, a “Revolving CommitmentsCommitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments” and ”),
(ii) one or more new term loan commitments of the same Class as any facility under which such Incremental outstanding Term Loans Loan (each, a “Term Loan Increase”), or
(iii) the addition of one or Incremental Revolving Commitments are made availablemore new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the “Incremental Facilities”); provided that the aggregate amount of all the Incremental Commitments at any time shall not exceed the Permitted Incremental Amount applicable to the Incremental Commitments at such time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as applicable, may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iii) the amount of such increase and the Facility or Facilities involved, Incremental Commitments being requested (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loans Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Applicable Margin for Borrower proposes to become an Incremental Lender, if such Incremental Term Loans; providedPerson is not then a Lender, that:an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent).
(Ab) the aggregate principal amount (or committed amount, if applicable) The terms and conditions of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event,
(Bi) (x) with respect if the Weighted Average Yield applicable to any Incremental Term Loans being incurred issued on or prior to finance a Permitted Acquisition or a similar permitted Investment designated the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the Parent Borrower applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of amended through the date of entry such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased to a level such that the Weighted Average Yield with respect to the Tranche B Term Loans is 0.50% per annum below the Weighted Average Yield with respect to such Incremental Loans (other than a shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter than the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as then-remaining Weighted Average Yield of the applicable Incremental Facility Activation DateTranche B Term Loans); provided, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of that, if any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoLoans, as applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable to any existing Class of Term Loans, such differential between interest rate floors shall be included in the calculation of Weighted Average Yield for purposes of this clause (i), no Default but only to the extent an increase in the Term SOFR or Event Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans shall be increased to the extent of Default has occurred and is continuing or shall result therefromsuch differential between interest rate floors;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Eii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Initial Tranche B Term Loans), ;
(iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (except in the case of other than an earlier maturity date for customary high-yield bridge loans financings, which, subject to customary conditions (including no payment or bankruptcy event of default)conditions, would either be automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to financing the stated maturity of which shall be no earlier than the Initial initial Tranche B Term FacilityMaturity Date);
(Fiv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and the Incremental Lenders and (y) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all other terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between terms of the Parent Borrower and the lenders for such Incremental Tranche B Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned)material respect, shall be reasonably satisfactory to the Administrative Agent (except for covenants and terms that apply solely to any period after the latest Maturity Date that is in effect on the effective date of such Incremental Facility Agreement) (it being understood that to the extent any financial maintenance covenant is added for the benefit of any Incremental Term Loans or any Incremental Term Commitments, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is also added for the benefit of any Tranche B Term Loans remaining outstanding after the effectiveness of such Incremental Facility Agreement);
(v) any Incremental Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Term Loans, as specified in the applicable Incremental Facility Agreement;
(vi) any Incremental Commitments and Incremental Loans shall, as elected by the Borrower, be equal or junior in right of payment with any remaining portion of the Facilities and, with respect to security with any remaining portion of the Facilities, pari passu, junior or unsecured and shall not be secured by any assets other than the Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any such Incremental Commitments or Incremental Loans that are pari passu with or junior to the Facilities with respect to security shall be subject to the Pari Passu Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement, as applicable);
(vii) the proceeds of any Incremental Facility shall be used for general corporate purposes, including to finance growth Capital Expenditures, to make Permitted Acquisitions and the related transactions and payment of fees and expenses with respect thereto, to make Restricted Payments and to refinance existing Indebtedness to the extent permitted hereunder, or for any other purpose not prohibited by this Agreement; and
(viii) the Incremental Revolving Commitments and Incremental Revolving Loans shall be identical to the Revolving Commitments and the Revolving Loans, other than as to their Maturity Date and as set forth in this Section 2.21 (Incremental Facilities); provided that, notwithstanding anything to the contrary in this Section 2.21 (Incremental Facilities) or otherwise:
(A) any such Incremental Revolving Commitments or Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans;
(B) any such Incremental Revolving Commitments or Incremental Revolving Loans shall not mature earlier than the latest Maturity Date of any Revolving Loans outstanding at the time of incurrence of such Incremental Revolving Commitments;
(C) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Commitments and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (D) below)) of Loans with respect to Incremental Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments on the Incremental Facility Closing Date; and
(D) the permanent repayment of Revolving Loans with respect to, and termination of, Incremental Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Parent, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below), no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Incremental Loans thereunder to be made on such date, (ii) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below), on the date of effectiveness thereof, the representations and warranties set forth in Article III and in the other Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case, on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects as of such prior date, (iii) after giving effect to such Incremental Revolving LoansCommitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Issuing Lenders and Borrower shall be in compliance with the Swingline Lender and Financial Covenants set forth in Section 6.12 (iiFinancial Covenants) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis and (iv) the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference have delivered or caused to have been delivered to the amount of each Type of Loan of Administrative Agent such Borrower (andcustomary legal opinions, in the case of Eurocurrency Loans or Term Benchmark Loansboard resolutions, of each Eurocurrency Tranche or Term Benchmark Tranchesecretary’s certificates, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date officer’s certificates and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate documents as shall reasonably be agreed upon between requested by the Parent Borrower and the relevant Lender)Administrative Agent in connection with any such transaction.
(d) Notwithstanding anything to the contrary foregoing provisions of this Section 2.21 (Incremental Facilities) or in this Agreementany other provision of any Loan Document, each if the proceeds of the parties hereto hereby agrees that, on each any Incremental Facility Closing Dateare intended to be applied to finance a Limited Condition Acquisition, this Agreement shall be amended to the extent (but only agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the extentBorrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: (i) (x) on the date of execution of the definitive documentation with respect to such Limited Condition Acquisition, all the requirements set forth in clause (c)(i) and (ii) above shall be satisfied and (y) on the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Loans, (A) no Event of Default under Section 7.01(b), (c), (g) or (h) (Events of Default), shall have occurred and be continuing and (B) the only representations and warranties the accuracy of which shall be a condition to funding such Incremental Loans shall be the Specified Representations (conformed as necessary to reflect apply to such Limited Condition Acquisition) and the existence Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and terms warranties set forth in Article III on the date of such closing and funding of such Limited Condition Acquisition, it being understood and agreed that only the representations and warranties set forth in clause (B) shall be conditions to funding of such Incremental Loans on such closing date; (ii) after giving effect to such Incremental Commitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Term Loans Commitments on a pro forma basis and (iii) the Borrower shall have delivered or Revolving Commitments evidenced thereby. Any caused to have been delivered to the Administrative Agent such amendment customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction.
(e) Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be effected necessary or appropriate, in writing by the opinion of the Administrative Agent, to give effect to the provisions of this Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Parent Borrower and furnished in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the other parties heretointerests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans to be fungible for United States federal income tax purposes with anotheran existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder.
(ef) The Closing Date Upon the effectiveness of an Incremental Revolving Commitments Commitment of any Incremental Lender, such Incremental Lender shall be provided on deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the Closing Date applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Commitments, subject Commitments and Incremental Loans for all purposes of this Agreement.
(g) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.
(h) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.2.21(a) (I
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Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request the establishment of Incremental Term Commitments; provided that the aggregate amount of all Incremental Term Loan Commitments established on any date shall not exceed (including New Lendersi) may from time to time agree that such Lenders shall make, obtain or increase (together with the amount of their Alternative Incremental Debt established on such date in reliance on the Base Incremental Amount) an amount equal to the Base Incremental Amount on such date and (ii) an additional amount subject to the Maximum Incremental Amount as of such date. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Term Commitments 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 Term Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Term Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent).
(b) The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or Revolving in the applicable Incremental Facility Agreement, identical to those of the Term Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental the Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying B Loans; provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) interest rate margins with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated shall be as agreed by the Parent Borrower as and the lenders in respect thereof; provided, that if the total yield (calculated, for both the Incremental Term Loans and the Term B Loans, to include upfront fees, any interest rate floors and any original issue discount (with original issue discount being equated to interest rate in a “Limited Conditionality Acquisition”manner determined by the Administrative Agent based on an assumed four-year life to maturity) but to exclude any arrangement, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger underwriting or similar agreement governing such acquisition or (yfee paid by the Borrower) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making in respect of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)exceeds the total yield for the existing Term B Loans by more than 0.50%, no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower Applicable Rate for the Term B Loans shall be increased so that the total yield in compliancerespect of such Incremental Term Loans is no higher than the total yield for the existing Term B Loans plus 0.50% (provided that if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Term B Loans, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect such increased amount shall be equated to the applicable Additional Credit Extension Amendment interest rate margin for purposes of determining whether an increase to the Applicable Rate for the Term B Loans shall be required, to the extent an increase in the interest rate floor for the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (including but not the making of Applicable Rate) applicable to the Term B Loans shall be increased by such amount), (ii) any Incremental Term Loan shall have terms, in the Borrower’s reasonable judgment, customary for a term loan under then-existing market convention, (iii) the amortization schedule with respect to any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed shall be as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required agreed by the Borrower and the lenders providing such Incremental Facility;
(E) in respect thereof, provided that the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Latest Maturing Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory outstanding immediately prior to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect establishment of such Incremental Term Facility elect lesser payments;
Loans (Hother than as necessary to make any such Incremental Term Loans fungible with such Latest Maturing Term Loans), (iv) no Incremental Term Maturity Date with respect to Incremental Term Loans shall be earlier than the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans, (v) except as permitted by clause (i), the Incremental Term Loans shall be treated no more favorably than the Term B Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans; provided further that any Incremental Revolving Commitments and the Revolving Term Loans in respect thereof shall be pursuant to the terms hereof may add additional covenants or events of default not otherwise applicable to the Revolving Facility and Term B Loans or covenants more restrictive than the covenants applicable to the Term B Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Revolving Commitments shall become Revolving Commitments under Facility so long as this Agreement after giving effect is amended to such Additional Credit Extension Amendment;
(I) without the consent provide all of the Administrative AgentLenders with the benefits of such additional covenants, events of default or more restrictive covenants, (xvi) to the extent the terms applicable to any Incremental Term Loans are inconsistent with the terms applicable to the Term B Loans (except, in each increase effected case, as otherwise permitted pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned)), such terms shall be reasonably satisfactory to the Administrative Agent andAgent, in the case of and (vii) any Incremental Revolving LoansTerm Loans 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 Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement Term B Loans. Any Incremental Term Commitments established pursuant to an Additional Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be more than six maturity dates in respect of the Credit Extension AmendmentFacilities (including any Extended Term Loans or Replacement Term Loans).
(c) Unless otherwise agreed The Incremental Term Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Term Lender providing such Incremental Term Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Term Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments and the making of Loans 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 -52- Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Term Commitments and the related transactions under this Section, and (iv) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing as of the date of entry into the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) and (ii) on the date of effectiveness of the Limited Conditionality Acquisition Agreement, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or in all respects if qualified by materiality) on and as of such date. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, on each Incremental Facility Closing Date with respect to give effect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount provisions of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Term Commitment of any Incremental Term Lender, such Incremental Term Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only to the extent) necessary to reflect the existence or Lenders in respect of Commitments and terms Loans of the Incremental Term applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in Section 5 the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the same extent applicable Borrower in an amount equal to such Incremental Term Commitment on the initial Revolving Commitments and without any further amendment to this date specified in such Incremental Facility Agreement.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in paragraph (a) above and of the effectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or (ii) the establishment of Incremental Facility”)Term Loan Commitments. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoan Commitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, Commitment or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichLoan Commitment may elect or decline, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects , to provide Commitments under such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Facility (i) to the extent Lender, if such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent Person is not to be unreasonably withheldthen a Lender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender and the Issuing Banks 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 Issuing Lenders aggregate amount of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20 shall not exceed the Swingline Lender 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 2.00 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 2.00 to 1.00 to the extent of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments and/or Incremental Term Loan Commitments may be incurred pursuant to this clause (B) prior to utilization of the amount set forth in clause (A) of this sentence.
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments, Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the latest of the Maturity Date or any other then existing Incremental Term Loan Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall become have a Lender under this Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any other then existing Term Loans, (iii) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and 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 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 and the then existing Term Loans. Any Incremental Term Loan Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Commitment hereunder, or provide Incremental Term Loans, at any time.
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless:
(i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect (including pro forma effect) to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by materiality or “Material Adverse Effect”, in all respects) on and as of such date;
(iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn but excluding the proceeds of any such Incremental Commitments for purposes of netting cash and Permitted Investments in the calculation of the Senior Secured Net Leverage Ratio or Total Leverage Ratio), the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11;
(iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section;
(v) the Administrative Agent shall have received documents and opinions consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrower to borrower hereunder after giving effect to such increase;
(vi) any new Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Incremental Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, on each its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(vii) the other conditions, if any, set forth in the applicable Incremental Facility Closing Date Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h), (i) or (j) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the date of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, (4) as of the date of the borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with respect such representations and warranties to be reasonably determined by the Lenders providing such Incremental Term Loans) shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and (5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the Revolving Facility, each Borrower shall borrow Revolving Loans under provisions of this Section and no consent of any Lender (other than the relevant increased Revolving Commitments from each Lender Lenders participating in the relevant increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder (it being understood that such Incremental Lender shall deliver the documentation required under Section 2.17(f) to the Administrative Agent and the Borrower) and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Lender with a Revolving Commitment (immediately prior to giving effect to such Incremental Revolving Commitments) shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders with Revolving Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the Borrower in an amount determined equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the Borrower referred to in paragraph (a) above and of the amount effectiveness of any Incremental Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the conditions set forth in Section 5 be made pursuant to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementparagraph (e) above.
Appears in 1 contract
Incremental Facilities. (a) The Parent At any time during the period commencing on the Restatement Date and ending on the third anniversary of the Restatement Date, at the option of Borrower and/or (but subject to the conditions set forth in clause (b) below), the Commitments may be increased by an amount in the aggregate for all such increases of the Commitments not to exceed the Available Increase Amount (each such increase, an "Increase"). Administrative Agent shall invite each Lender to increase its Commitments (it being understood that no Lender shall be obligated to increase its Commitments) in connection with a proposed Increase at the interest margin proposed by Borrower, and if sufficient Lenders do not agree to increase their Commitments in connection with such proposed Increase, then Administrative Agent or Borrower may invite any Additional prospective lender who is reasonably satisfactory to Administrative Agent and Borrower to become a "Lender" in connection with a proposed Increase, in each case at the interest margin proposed by Borrower. Any Increase shall be in an amount of at least $25,000,000. In no event may the Commitments be increased pursuant to this Section 2.19 on more than 4 occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Commitments after the Restatement Date exceed $135,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Commitments in connection therewith:
(i) Administrative Agent or Borrower have obtained the commitment of one or more Lenders (including New Lendersor other prospective lenders) may from time reasonably satisfactory to time agree that Administrative Agent and Borrower to provide the applicable Increase and any such Lenders shall make(or prospective lenders), obtain or increase the amount of their Incremental Term Loans or Revolving Commitments Borrower, and Administrative Agent have signed a joinder agreement to this Agreement (any such increased Revolving Commitmentsan "Increase Joinder"), “Incremental Revolving Commitments” in form and any facility under substance reasonably satisfactory to Administrative Agent, to which such Incremental Term Loans Lenders (or Incremental Revolving Commitments are made available, an “Incremental Facility”prospective lenders), as applicableBorrower, by executing and delivering Administrative 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 Credit Party or any of its Restricted Subsidiaries owns or will acquire any Margin Stock, Borrower shall deliver to the Administrative Agent an Additional Credit Extension Amendment specifying updated Form U-1 (iwith sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as Administrative Agent shall reasonably request, in order to enable Administrative Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board, and
(iv) Borrower shall have reached agreement with the Lenders (or prospective lenders) agreeing to the increased Commitments with respect to the interest margins applicable to Advances to be made pursuant to the increased Commitments (which interest margins may be higher than or equal to the interest margins applicable to Advances set forth in this Agreement immediately prior to the date of the increased Commitments (the date of the effectiveness of the increased Commitments, the "Increase Date")) and shall have communicated the amount of such increase interest margins to Administrative Agent. Any Increase Joinder may, with the consent of Administrative Agent, Borrower and the Facility Lenders or Facilities involvedprospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Credit Documents as may be necessary to effectuate the provisions of this Section 2.19 (ii) including any amendment necessary to effectuate the applicable Incremental Facility Closing Date, (iii) interest margins for the applicable Borrower(s) and (iv) in Advances to be made pursuant to the case of Incremental Term Loans, (w) increased Commitments). Anything to the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountcontrary contained herein notwithstanding, if applicablethe interest margins (including floors) of all Incremental Term Loans and Incremental Revolving Commitments, together with that is to be applicable to the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed Advances to be made pursuant to the Incremental Cap;
increased Commitments is higher than the interest margins (Bincluding floors) (x) with respect applicable to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, Advances immediately prior to and after giving effect to any Additional Credit Extension Amendment the applicable Increase Date (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoamount by which such margin is higher, the "Excess"), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) then the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise interest margin applicable to the Revolving Facility Advances immediately prior to the Increase Date shall be increased by the amount of the Excess, effective on the applicable Increase Date, and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case necessity of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendmentaction by any party hereto.
(c) Unless otherwise agreed by specifically provided herein, all references in this Agreement and any other Credit Document to Advances shall be deemed, unless the Administrative Agentcontext otherwise requires, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed include Advances made pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable increased Commitments pursuant to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.19.
(d) Notwithstanding anything Each of the Lenders having a Commitment prior to the contrary Increase Date (the "Pre-Increase Revolver Lenders") shall assign to any Lender which is acquiring a new or additional Commitment on the Increase Date (the "Post-Increase Revolver Lenders"), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in this Agreement, each the Advances and participation interests in Letters of the parties hereto hereby agrees Credit on such Increase Date as shall be necessary in order that, on each Incremental Facility Closing Dateafter giving effect to all such assignments and purchases, this Agreement shall such Advances and participation interests in Letters of Credit will be amended held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Applicable Percentage after giving effect to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoincreased Commitments.
(e) The Closing Date Incremental Revolving Advances and Commitments established pursuant to this Section 2.19 shall constitute Advances and Commitments under, and shall be provided on entitled to all the Closing Date as Incremental Revolving Commitmentsbenefits afforded by, subject this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Credit Documents. Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Credit Documents continue to be perfected under the UCC or otherwise after giving effect to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without establishment of any further amendment to this Agreementsuch new Commitments.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower and any one time or more Lenders (including New Lenders) may from time to time agree that after the Closing Date, by written notice delivered to the Administrative Agent no later than 10 days prior to the anticipated Incremental Facility Closing Date (or such Lenders shorter period as may be agreed by the Administrative Agent in its discretion) (whereupon the Administrative Agent shall makepromptly deliver a copy to each of the Lenders), obtain request (i) one or increase more additional tranches of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of their Incremental Term Loans or the Revolving Credit Commitments (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Credit Commitment Increase”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) one or more additional tranches of revolving credit commitments (the applicable Borrower(s) and (iv) in “Additional/Replacement Revolving Credit Commitments”); provided that both at the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount time of any Permitted Incremental Equivalent Debt, shall not exceed such request and after giving effect to the Incremental Cap;
(B) (x) with respect to effectiveness of any Incremental Term Loans being incurred Agreement referred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”below, no Default or Event of Default has occurred shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments is continuing as of the date of entry into the applicable acquisition, merger made or similar agreement governing such acquisition or effected (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred shall exist; provided, further, that after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and is continuing or shall result therefrom;
(C) after giving effect to any investment to be consummated in connection therewith), the Parent Borrower and the Restricted Subsidiaries shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made compliance with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed requirements of Sections 10.9 and 10.10 computed as of the last day of the most recently ended fiscal quarter recent Test Period, 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 on the last day of such Test Period for testing compliance therewith.
(b) Each tranche of Incremental Term Loans, each Incremental Revolving Credit Commitment Increase and each tranche of Additional/Replacement Revolving Credit Commitments shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth below in this Section 2.14(b)) and the aggregate amount of the Parent Borrower for which financial statements Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed $150,000,000 (the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, to the extent that the Net Cash Proceeds from such Incremental Term Loans are available;
used on the date of incurrence of such Incremental Term Loans to make the prepayments as required pursuant to Section 5.2(a)(i), (Dii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit to the extent that the existing Revolving Credit Commitments shall be 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, (iii) in no event shall it there be a condition to the effectiveness of, or Borrowing under, more than three Classes of revolving credit commitments outstanding at any Incremental Facility that one time and (iv) in no event shall there be more than six Classes of Term Loans outstanding at any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;one time.
(EA) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all The Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments (i) shall rank pari passu in right of payment and right of security with the Tranche D Term Loans, (ii) shall not mature earlier than the Tranche D Term Loan Maturity Date, (iii) shall have all-in respect pricing (including, without limitation, margins, fees, funding discounts, and premiums) and, subject to clause (ii) above, a maturity date and amortization schedules determined by the Borrower and the lenders thereof, (iv) shall have voluntary and mandatory prepayments subject to the provisions of Section 5.1 and 5.2 and (v) shall otherwise have terms and conditions substantially similar to those of the Collateral with the Tranche D Term Loans and unless the differences are (x) solely technical in nature or (y) made for the benefit of the Lenders of the Tranche D Term Loans.
(B) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
Credit Commitments (G) except including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility.
(C) 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 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 all-in pricing (including, without limitation, margins, fees, premiums and funding discounts) determined by the Borrower and the lenders of such commitments; (iv) shall contain procedures that require Additional/Replacement Revolving Credit Loans thereunder to be borrowed and repaid (other than in connection with a permanent repayment and termination of commitments) on a pro rata basis with any borrowings and repayments of Revolving Credit Loans under the Revolving Credit Commitments (which procedures may be implemented through the applicable Incremental Agreement and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Facility), (v) shall have voluntary and mandatory reductions of commitment rights that are subject to the provisions of Sections 4.2 and 5.2(e)(ii), (vi) may include provisions relating to swingline 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 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 case which shall be specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or as otherwise reasonably acceptable to the Administrative Agent and (vii) shall otherwise have terms and conditions substantially similar to those of the Revolving Credit Facility unless the differences are (x) solely technical in nature or (y) made for the benefit of the Lenders of the Revolving Credit Commitments.
(d) 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 or 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 (i) each existing Lender may elect or decline, in this Section 2.25(a)its sole discretion, all terms to make a portion of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentLoan, (xii) each increase effected pursuant to this paragraph shall be in existing Lender with a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates Revolving Credit Commitment may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so elect or decline, in its sole discretion.
(b) Any New Lender that elects , to provide Commitments under an a portion of any Incremental Facility Revolving Credit Commitment Increase or any Additional/Replacement Revolving Credit Commitment and (iiii) the Borrower shall have simultaneously offered the existing Lenders the opportunity to provide any such Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Commitments) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to the extent such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, if such consent would be required under Section 13.6(b) for an assignment of such Loans or Commitments, as applicable, to such Lender or Additional Lender.
(e) Commitments pursuant to Section 10.6 in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any an Incremental Revolving LoansCredit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, the Issuing Lenders and the Swingline Lender and (iian increase in such Lender’s applicable Revolving Credit Commitment) shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Credit Extension Amendment.
(c) Unless otherwise agreed by Lender, if any, and the Administrative Agent. The Incremental Agreement may, on each Incremental Facility Closing Date with respect subject to Section 2.14(c), without the Revolving Facilityconsent of any other Lender, each Borrower shall borrow Revolving Loans under effect such amendments to this Agreement and the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (andother Credit Documents as may be necessary, in the case reasonable opinion of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Agreement shall be subject to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided satisfaction on the date thereof (each, an “Incremental Facility Closing Date as Incremental Revolving Commitments, subject to Date”) of each of the conditions set forth in Section 5 7 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7 shall be deemed to refer to the same extent applicable effective date of such Incremental Agreement), the delivery to the initial Administrative Agent of legal opinions of counsel reasonably requested by the Administrative Agent in connection with any such transaction and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided, however, that the proceeds of any Incremental Term Loans incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), shall be used in accordance with the terms thereof.
(i) Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline 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 Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(ii) Upon each provision of Additional/Replacement Revolving Credit Commitments pursuant to clause (ii) of the proviso to Section 2.14(b), each Lender with a Revolving Credit Commitment immediately prior to the providing of such Additional/Replacement Revolving Loan Commitments will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Additional/Replacement Revolving Credit Commitment in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment and each Lender with an Additional/Replacement Revolving Credit Commitment will equal the percentage of the aggregate Revolving Credit Commitments and without aggregate Additional/Replacement Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment and Additional/Replacement Revolving Credit Commitment, as applicable. If, on the date of the providing of such Additional/Replacement Revolving Credit Commitments pursuant to clause (ii) of the proviso to Section 2.14(b), there are any further amendment Revolving Credit Loans outstanding, such Revolving Credit Loans shall, on or prior to the effectiveness of such Additional/Replacement Revolving Credit Commitments, be prepaid from the proceeds of Additional/Replacement Revolving Credit Loans made hereunder (reflecting such Additional/Replacement Revolving Credit Commitments), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this AgreementAgreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.”
(dd) A new Section 2.15 of the Credit Agreement is hereby added as follows:
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Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) Representative may from time to time, upon at least ten (10) Business Days’ prior written notice to the Administrative Agent in each case, at any time agree that such Lenders shall makeprior to the Maturity Date, obtain or increase the amount of their Incremental Term Loans or Aggregate Revolving Commitments (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental Revolving Increase”) and/or add one or more tranches of term loans (each an “Incremental Term Facility”); each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower Representative by an agreement in writing entered into by the applicable Borrowers, as applicable, by executing and delivering to the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an Additional Credit Extension Amendment specifying “Incremental Facility Amendment”); provided that:
(i) the sum of the cumulative aggregate original principal amount of such increase and all Incremental Facilities established under this Section 2.01(b) plus the Facility or Facilities involved, (ii) the applicable cumulative aggregate original principal amount of all Alternative Incremental Facility Closing DateIndebtedness incurred under Section 8.03(r) shall not exceed, at the time any such Incremental Facility is established (iii) the applicable Borrower(s) and (iv) in giving effect thereto), as the case of Incremental Term Loansmay be, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
sum of: (A) the aggregate principal amount greater of (1) $225,000,000 and (2) Consolidated EBITDA for the most recently ended period of four fiscal quarters for which the Borrowers have delivered financial statements pursuant to Section 7.01(a) or committed amount(b), if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
plus (B) (x) with respect to any Incremental Term Loans being incurred to finance such additional amount that would not cause the Consolidated Senior Secured Leverage Ratio, calculated on a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and Pro Forma Basis after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any such Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and treating any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that Increase as fully drawn for such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)purpose), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for to be greater than 2.00 to 1.00 (which financial statements are available;
amount under this clause (DB) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than deemed incurred, and the weighted average life Consolidated Senior Secured Leverage Ratio calculated as aforesaid, prior to maturity giving effect to any substantially concurrent incurrence of Incremental Facilities under the Initial Term Facility preceding clause (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of defaultA), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fii) all Incremental Term Loans no Default shall have occurred and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment be continuing, and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement no Default would exist after giving effect to any Incremental Facility, both on the date on which such Additional Credit Extension AmendmentIncremental Facility is requested and on the date on which such Incremental Facility is to become effective;
(I) without the consent of the Administrative Agent, (xiii) each increase effected pursuant to this paragraph Incremental Facility shall be in a minimum amount of at least $50,000,000 20,000,000 and in integral multiples of $5,000,000 in excess thereof (yor such lesser amounts as the Administrative Agent may agree);
(iv) no more than five existing Lender shall be under any obligation to provide any Incremental Facility Closing Dates may Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(v) each Person providing any Incremental Facility Commitment shall be an institution selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender Representative that elects to provide Commitments under qualifies as an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be Eligible Assignee and is reasonably satisfactory acceptable to the Administrative Agent and, in the case of any such institution providing an Incremental Revolving LoansIncrease, the Issuing Lenders L/C Issuer and the Swingline Lender Swing Line Lender;
(vi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (iiB) shall become a Lender documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement pursuant in form and substance acceptable to the Administrative Agent;
(vii) the Administrative Agent shall have received:
(A) a certificate of the applicable Borrowers dated as of the effective date of such Incremental Facility signed by a Responsible Officer of the Borrower Representative (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of each applicable Borrower approving such Incremental Facility, and (2) certifying that, before and after giving effect to such Incremental Facility, (x) the representations and warranties contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) on and as of the date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an Additional Credit Extension Amendment.earlier date, in which case they shall be true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) as of such earlier date, and (y) no Default exists;
(cB) Unless otherwise agreed in the case of an Incremental Term Facility, a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Term Facility the Borrowers are in compliance with the financial covenants in Section 8.11 on a Pro Forma Basis;
(C) such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility;
(D) to the extent requested by the Administrative Agent, on customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Closing Commitment), dated as of the effective date of such Incremental Facility; and
(E) such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(viii) in the case of an Incremental Revolving Increase:
(A) the terms and conditions (including interest rate, interest rate margins, fees (other than arrangement, structuring, underwriting and similar fees not paid generally to all Lenders under such Incremental Revolving Increase), prepayment terms and final maturity) of such Incremental Revolving Increase shall be the same as the terms applicable to the Aggregate Revolving Commitments hereunder;
(B) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving Commitments pursuant to this Section 2.01(b) and to include thereon any Person that becomes a Lender with a Revolving Commitment pursuant to this Section 2.01(b); and
(C) on the effective date of such Incremental Revolving Increase, the existing Lenders with Revolving Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Revolving Increase and such assignments and adjustments, each Revolving Lender (including the Lenders providing such Incremental Revolving Increase) will hold its pro rata share (based on its Applicable Percentage of the increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans; and
(ix) in the case of an Incremental Term Facility;
(A) the interest rate, interest rate floors, interest rate margins, fees, discount, prepayment premiums, mandatory prepayments, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Borrower Representative and the Lenders providing such Incremental Term Facility; provided that:
(1) the final maturity of such Incremental Term Facility shall not be earlier than the later of (x) the Maturity Date with respect to Revolving Loans and (y) the final maturity of any other Incremental Term Facility;
(2) the weighted average life to maturity of such Incremental Term Facility shall not be less than the remaining weighted average life to maturity of any other Incremental Term Facility (in each case, as determined by the Administrative Agent in accordance with customary financial practice); and
(3) unless approved by the Administrative Agent, such Incremental Term Facility is on terms and conditions that are not materially more restrictive than the terms and conditions applicable to the Revolving Facility, each Borrower Commitments and any other Incremental Term Facility hereunder;
(B) the proceeds of such Incremental Term Facility shall borrow Revolving Loans under be used for the relevant increased Revolving Commitments from each Lender participating purposes described in the relevant increase definitive documentation for such Incremental Term Facility;
(C) Schedule 2.01 shall be deemed revised to add the commitments and commitment percentages of the Lenders providing the Incremental Term Facility; and
(D) such Incremental Term Facility shall share ratably in an amount determined any prepayments of any other Incremental Term Facilities pursuant to this Agreement (or otherwise provide for more favorable prepayment treatment for the then outstanding other Incremental Term Facilities) and shall have ratable voting rights with the other Incremental Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding other Incremental Term Facilities). The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by reference the Collateral Documents and any guarantees provided with respect to the amount of each Type of Obligations. The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Loan of such Borrower (andDocuments shall be amended by, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended Amendments to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower Representative deem necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.01(b) (including by adding provisions related to voluntary and furnished mandatory prepayments of term loans under any Incremental Term Facility as deemed appropriate by the parties to any Incremental Facility Amendment). The Administrative Agent shall promptly notify each Lender as to the other parties hereto.
(eeffectiveness of each Incremental Facility Amendment. This Section 2.01(b) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject supersede any provisions in Section 2.13 or 11.01 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or after the Second Restatement Effective Date elect to increase the amount of their Incremental Term Loans Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableexisting tranche of) term loans denominated in Dollars (each, an “Incremental FacilityTerm Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments and (y) $20,000,000 (or such lesser amount as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedmay agree), (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower so long as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment Refinancing Term Loans and Refinancing Revolving Commitments) the aggregate principal amount of Increased Commitments or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and to be established or incurred, as applicable, does not exceed the Incremental Cap at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Loans made Commitment or Extended Revolving Commitment, or to participate in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “New Lender”), to increase their existing Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, or extend Revolving Commitments or Extended Revolving Commitments, as the Administrative Agentcase may be; provided that each Incremental Term Facility New Lender (and, in the case of an Increased Commitment, each Increasing Lender) shall share ratably in any mandatory prepayments be subject to the approval of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agentand, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required under Section 9.04 for an assignment of to such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldNew Lender, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank and Swingline Lender (in each case, such consents not to be unreasonably withheld or delayed). Without the consent of any Incremental Revolving LoansLenders other than the relevant Increasing Lenders or New Lenders, the Issuing Lenders this Agreement and the Swingline Lender and (ii) shall become a Lender under this Agreement other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the date agreed by the Borrower, the Administrative Agent, on Agent and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Incremental Facility Closing Date with respect Lender thereof. Notwithstanding the foregoing (but subject to the Revolving Facilityfollowing proviso), each Borrower shall borrow Revolving Loans under the relevant increased no Increased Commitments or Extended Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency or Incremental Term Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if shall be permitted under this paragraph unless (i) each on the proposed date of the effectiveness of such Type, Eurocurrency Tranche increase in the Revolving Commitments or Term Benchmark Tranche had been borrowed Extended Revolving Commitments or effected by such Borrower on borrowing of such Incremental Facility Closing Date Term Loan, the conditions set forth in paragraphs (a) and (iib) of Section 4.02 shall be satisfied (or waived by the aggregate amount Required Lenders) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of each such Typethe Borrower; provided, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant that to the preceding sentence shall equal extent agreed to by the Eurocurrency Rate then applicable to the Eurocurrency Loans Lenders providing such Increased Commitments or Adjusted Incremental Term SOFR Rate for Term Benchmark Loans, as applicable, and the proceeds of such Increased Commitments or Incremental Term Loans, as the case may be, are used to finance a Permitted Acquisition or similar Investment, with respect to the condition set forth in Section 4.02(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.02(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenants contained in Section 6.09 as of the last day of the most recent fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) of this Agreement (or, prior to the initial delivery under this Agreement, of the Amended and Restated Credit Agreement) prior to such time. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, and shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the same Eurocurrency Tranche Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i)(x) the final scheduled maturity date of any Incremental Term Loans (other than Refinancing Term Loans) which have scheduled amortization in excess of 1.00% per annum, a final maturity of five years or less and which are primarily syndicated to commercial banks in connection with the primary syndication thereof (as reasonably determined by the Administrative Agent) (each, an “Incremental Term Benchmark TrancheA Loan”) shall be no earlier than the Term A-2 Loan Maturity Date (or any later date required pursuant to any Additional Credit Extension Amendment entered into after the Second Restatement Effective Date that has previously become effective) and (y) the final scheduled maturity date of any Incremental Term Loans that are not Refinancing Term Loans or Incremental Term A Loans (each, as applicable (or, until the expiration of an “Incremental Term B Loan”) shall be no earlier than the then-current Interest Periodlatest maturity date of any Class of Term Loans outstanding on the Second Restatement Effective Date (or any later date required pursuant to any Additional Credit Extension Amendment entered into after the Second Restatement Effective Date that has previously become effective), (ii)(x) the Weighted Average Life to Maturity of any Incremental Term A Loans (other than Refinancing Term Loans) shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term A-2 Loans (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment entered into after the Second Restatement Effective Date that has previously become effective) (except to the extent of amortization of up to 1.00% per annum of the original principal amount of such Incremental Term A Loans for periods where amortization has been eliminated as a result of prepayment of the applicable Term Loans) and (y) the Weighted Average Life to Maturity of any Incremental Term B Loans (other rate than Refinancing Term Loans) shall not be shorter than the longest then remaining Weighted Average Life to Maturity of any Class of Term Loans outstanding on the Second Restatement Effective Date (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment entered into after the Second Restatement Effective Date that has previously become effective) (except to the extent of amortization of up to 1.00% per annum of the original principal amount of such Incremental Term B Loans for periods where amortization has been eliminated as a result of prepayment of the applicable Term Loans), (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Term Loans in any mandatory prepayment hereunder (except in the case of (a) incurrence of Refinancing Indebtedness in respect thereof and (b) mandatory prepayments with respect to a Class of Incremental Term Loans issued subject to customary escrow provisions that include a mandatory prepayment applicable solely to such Class of Incremental Term Loans if the applicable escrow release event does not occur prior to the specified escrow “outside date”), (iv) the provisions with respect to payment of interest (including any “MFN” provisions), original issue discount and upfront fees shall be agreed upon between as set forth in the Parent Additional Credit Extension Amendment providing for such Incremental Term Loans, (v) any Class of Incremental Term Loans may contain customary excess cash flow mandatory prepayment provisions; provided that such mandatory prepayments with respect to such Incremental Term Loans shall be made on a no greater than pro rata basis with the then existing Term Loans, (vi) if the Borrower and the lenders providing the relevant Lender).
Class of Incremental Term Loans agree, such Incremental Term Loans may be Excluded Term Loans, (dvii) Notwithstanding anything if the Borrower and the lenders providing the relevant Class of Incremental Term Loans agree, the Additional Credit Extension Amendment providing for such Incremental Term Loans may permit repurchases by, or assignments to, the Borrower or any Restricted Subsidiary of such Incremental Term Loans pursuant to the contrary in this Agreementopen market purchases or “dutch auctions” so long as (1) no Event of Default shall have occurred and be continuing, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent2) necessary to reflect the existence and terms of the Incremental Term Loans purchased are immediately and automatically canceled, (3) no proceeds from any loan under any revolving credit facility shall be used to fund such assignments or repurchases and (4) the purchasing party shall be required to identify itself and the seller shall make a customary “big boy” representation and (viii) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (vii) above) to the extent not identical to the terms of the then outstanding Term Loans, shall be permitted if reasonably satisfactory to the Administrative Agent. The terms of any Increased Commitments shall be the same as those of the Revolving Commitments evidenced thereby. Any such amendment or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may be effected in writing by the Administrative Agent have a later maturity date than, and the Parent Borrower pricing and furnished fees different from, those applicable to the other parties heretoRevolving Commitments and Extended Revolving Commitments. For the avoidance of doubt, no Lender shall have any obligation to provide any Increased Commitment or Incremental Term Loan by virtue of this Agreement.
(eb) The Closing Date Incremental Revolving Commitments This Section 2.19 shall be provided on the Closing Date as Incremental Revolving Commitments, subject override any provisions in Section 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Sources: Credit Agreement (Cable One, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders (including New Lenders) may from time occasions, by written notice to time agree the Administrative Agent, request the establishment of Incremental Term Commitments, provided that such Lenders shall make, obtain or increase the sum of the cumulative aggregate original amount of their all the Incremental Term Loans Commitments established under this Section and aggregate original amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(a)(xiii) shall not, on the date of effectiveness of any Incremental Term Commitments under this Section or Revolving Commitments (the date of issuance of any such increased Revolving CommitmentsAlternative Incremental Facility Indebtedness, “as the case may be, exceed the Maximum Incremental Revolving Commitments” and any facility under Amount in effect on such date. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Term Commitments 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 Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent and (B) the amount of the Incremental Term Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Commitment and (y) any Person that the Borrower proposes to become an Additional Credit Extension Amendment specifying Incremental Term Lender, if such Person is not then a Lender, must be an Eligible Assignee.
(b) The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the Effective Date Term Loans and related Commitments; provided that (i) the amount of such increase upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Facility or Facilities involvedIncremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) except in the case of an Incremental Term Facility effected as an increase to an existing Class of Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Loans with the Latest Maturity Date, (iii) if the weighted average yield relating to any Incremental Term Loan exceeds the weighted average yield relating to the Effective Date Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (except 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 case of customary high-yield bridge loans which, subject interest rate floor applicable to customary conditions (including no payment or bankruptcy event of defaultthe Effective Date Loans would result in an increase in an interest rate then in effect for the Effective Date Loans hereunder)), would either automatically then the Applicable Rate (A) relating to the Effective Date Loans shall be converted into or required to be exchanged for permanent Indebtedness adjusted so that does not have a shorter the weighted average life yield relating to maturity than the Initial Term Facility);
(F) all such Incremental Term Loans and shall not exceed the weighted average yield relating to the Effective Date Loans by more than 0.50%; provided that any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect greater interest rate floor applicable to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility will, if requiring an adjustment hereunder, be reflected as an increase to the interest rate floor applicable to the Effective Date Loans rather than being reflected in an adjustment to the Applicable Rate) and reasonably satisfactory (iv) no Incremental Term Loan Maturity Date shall be earlier than the Latest 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 Term Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the other Obligations.
(c) The Incremental Term Commitments and Incremental Term Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by Holdings, the Borrower, each Incremental Term Lender providing such Incremental Term Commitments and Incremental Term Facilities and the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Term Commitments and the making of Loans on such date, (Iii) without on the consent 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 Administrative Agentrepresentations and warranties qualified as to materiality, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 all respects and (yB) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate otherwise, in any increase described all material respects, in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment each case on and as of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withhelddate, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, 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 2.16 in connection with such Incremental Revolving Loans, the Issuing Lenders Term Commitments and the Swingline Lender related transactions under this Section and (iv) the Borrower shall have delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents in connection with any such transaction, including a certificate of a Financial Officer of the Borrower to the effect set forth in clauses (i) and (ii) shall become above, together with reasonably detailed calculations demonstrating compliance with Section 2.21(a) above. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to give effect to the provisions of this Section, provided that to the extent that any term of any such amendment could not be approved as an amendment of this Agreement by the Lenders providing such Incremental Term Commitments voting a Lender single Series without the approval of any other Lender, such amendment will be subject to the approval of the requisite Lenders required under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)Agreement.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Term Commitment of any Incremental Term Lender, such Incremental Term Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only to the extent) necessary to reflect the existence or Lenders in respect of Commitments and terms Loans of the Incremental Term applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 5 to 2.21(a) and of the same extent applicable to effectiveness of any Incremental Term Commitments, in each case advising the initial Revolving Commitments and without any further amendment to this AgreementLenders of the details thereof.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time by written notice to time agree that such Lenders shall make, obtain or the Administrative Agent elect to request prior to the Revolving Commitment Termination Date an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or the establishment of one or more new term loan commitments (the “Incremental Term Loans or Loan Commitments”), by an amount not in excess of $250,000,000 in the aggregate (such amount, as it may be reduced pursuant to Section 2.05(b)(i)(B), the “Incremental Capacity”) and not less than $25,000,000 individually; provided that Incremental Revolving Commitments are made availableshall not exceed $100,000,000 in the aggregate. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (each, an “Incremental FacilityRevolving Loan Lender” or “Incremental Term Loan Lender”), as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, by executing be allocated and delivering the amounts of such allocations. Any Lender approached to provide all or a portion of the Administrative Agent Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide a Incremental Revolving Commitment or an Additional Credit Extension Amendment specifying Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable and the extensions of credit to be made thereunder on such date; (including ii) both before and immediately after giving effect to the making of any Series of Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 4.02 shall result therefrom;
be satisfied; (Ciii) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to compliance with each of the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed 7.11 as of the last day of the most recently ended fiscal quarter Fiscal Quarter and as of the Parent Borrower Increased Amount Date (assuming for which financial statements are available;
(D) in no event such purpose that the relevant ratios shall it be a condition to the effectiveness ofhave been calculated taking into account all Consolidated Funded Debt outstanding on such date, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity Consolidated EBITDA as of the Initial Term Facility most recently completed Measurement Period and the Consolidated Interest Charges for such Measurement Period (except assuming for such purpose that such Consolidated Funded Debt had been outstanding on the first day of and through the end of such Measurement Period and measuring such ratios against those for the most recently ended period in the case of customary high-yield bridge loans which, subject question set forth in Section 7.11)) after giving effect to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments and the extensions of credit to be made thereunder on such date, as applicable; (iv) 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(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); (v) the Incremental Facilities shall rank pari passu in right of payment security with the Revolving Credit Facility and right of security the Term A Facility, (vi) all reasonable fees and out-of-pocket expenses owing to the Administrative Agent and the Lenders (other than a Defaulting Lender) in respect of the Collateral Incremental Revolving Commitments and Incremental Term Loan Commitments shall have been paid and (vii) the Borrower shall deliver or cause to be delivered legal opinions, officer’s certificates and such other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement or, if made on terms identical to the Term Loans A Loans, may constitute a part of the Term A Facility.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and none of the obligors or guarantors with respect thereto outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving 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, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Person that is not Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan Party;
and (Giii) except each Incremental Revolving Loan Lender shall become a Lender with respect to pricing the Incremental Revolving Commitment and fees or as otherwise set forth in this Section 2.25(a), all terms of matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term FacilityLoan Commitments of any Series are effective, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory subject to the Administrative Agent; provided that satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender of any Series shall share ratably make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any mandatory prepayments Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the applicable Term Facility unless the Parent Borrower Borrower’s notice of each Increased Amount Date and the lenders in respect of such Incremental Term Facility elect lesser payments;
thereof (Hi) any the Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments shall become Revolving Commitments under this Agreement after giving effect to and the Incremental Term Loan Lenders of such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentSeries, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 as applicable and (yii) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of each notice to any Incremental applicable Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on in each Incremental Facility Closing Date with respect case subject to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined assignments contemplated by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoSection.
(e) The Closing Date terms and provisions of the Incremental Revolving 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 Term A Loans. In any event (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be provided on no shorter than the Closing Weighted Average Life to Maturity of the Term A Loans, (ii) the applicable Incremental Term Loan Maturity Date as Incremental Revolving Commitmentsof each Series shall be no shorter than the latest final maturity date of the Term A Loans, subject and (iii) the yield applicable to the conditions Incremental Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in Section 5 to each applicable Joinder Agreement; provided, however, that if the same extent All-in Yield applicable to the initial Incremental Term Loans exceeds the applicable All-in Yield of the Term A Loans by more than 0.50% per annum, the applicable interest rate of the Term A Loans shall be increased (without further consent of the affected Lenders) so that the All-in Yield applicable to the Incremental Term Loans is not more than 0.50% per annum more than the All-in Yield applicable to the Term A Loans.
(f) The terms and provisions of the Incremental Revolving Commitments and Loans shall be identical to the Revolving Loans; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving Facility, the interest rate on the Revolving Facility shall be increased to equal such required rate without further consent of the affected Lenders.
(g) Each Joinder Agreement may, without the consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.14.
(h) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
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Incremental Facilities. (a) The Parent At any time after the Closing Date and prior to the Term Loan Maturity Date, the Borrower and/or any Additional Borrower and any one or more may request (but subject to the conditions set forth in clause (b) below) the Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any establish an incremental term loan facility under which this Agreement in an unlimited aggregate principal amount not to exceed $50,000,000 (each such Incremental Term Loans or Incremental Revolving Commitments are made availablefacility, an “Incremental Facility”), as applicable, by executing and delivering . No Lender shall be obligated to
(b) Each of the following shall be conditions precedent to the Administrative Agent an Additional Credit Extension Amendment specifying effectiveness of any Incremental Facility: (i) the amount Borrower shall have delivered an irrevocable written request for such Incremental Facility at least fifteen (15) Business Days prior to the requested effective date of such increase Incremental Facility (or such shorter period as agreed to by the Administrative Agent), and promptly after receipt thereof, the Administrative Agent shall invite each Lender to provide the Incremental Facility ratably in accordance with its Aggregate Exposure Percentage of each requested Incremental Facility (it being agreed that no Lender shall be obligated to provide an Incremental Facility and that any Lender may elect to participate in such Increase in an amount that is less than its Aggregate Exposure Percentage of such requested Increase or Facilities involvedmore than its Aggregate Exposure Percentage of such requested Incremental Facility if other Lenders have elected not participate in any applicable requested Incremental Facility in accordance with their Aggregate Exposure Percentages) and to the extent ten (10) Business Days after receipt of invitation, sufficient Lenders do not agree to provide the Incremental Facility on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Facility; (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) each Lender agreeing to participate in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) , the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Administrative Agent shall have signed an Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
Joinder (H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without Joinder may, with the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 the Borrower and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation Lenders agreeing to participate in any increase described in such Incremental Facility, effect such amendments to this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders Agreement and the Swingline Lender other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.27) and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under have executed any Notes requested by any Lender in connection with the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, incurrence of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Incremental Facility. Notwithstanding anything to the contrary in this AgreementAgreement or in any other Loan Document, an Incremental Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to participate in such Incremental Facility; (iii) each of the parties hereto hereby agrees that, on each conditions precedent set forth in Section 5.2 are satisfied with respect to such Incremental Facility; (iv) after giving pro forma effect to such Incremental Facility Closing Dateand the use of proceeds thereof, (A) no Default or Event of Default shall have occurred and be continuing at the time of the incurrence of such Incremental Facility and (B) the Borrower shall be in compliance with the then applicable financial covenants set forth in Section 7.1 regardless of whether a Compliance Testing Period is then in effect hereof as of the end of the most recently ended fiscal period for which financial statements are required to be delivered prior to the incurrence of such Incremental Facility, it being agreed that (A) the proceeds of such Incremental Facility shall not be applied to reduce Consolidated Total Indebtedness for purposes of calculating the Consolidated Leverage Ratio and (B) the pro forma Consolidated Leverage Ratio as of the end of such fiscal period shall not be greater than 0.25:1.00 lower than the Consolidated Leverage Ratio required under Section 7.1(b) regardless of whether a Compliance Testing Period is then
(c) Upon the effectiveness of any Incremental Facility, all references in this Agreement and any other Loan Document to the Loans and/or Lenders shall be amended deemed, unless the context otherwise requires, to include the term loans incurred pursuant to such Incremental Facility and the lenders thereunder.
(d) The Incremental Facilities established pursuant to this Section 2.27 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, other than in the case of an Incremental Facility that is secured on a junior basis in respect of the Collateral. The Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the extent (but only to the extent) necessary to reflect the existence and terms establishment of the any such Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoFacility.
(e) The Closing Date Any documentation with respect to any Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Facility which differ from those with respect to the conditions set forth in Section 5 Term Loans (except to the same extent applicable permitted hereunder) shall reflect market terms and conditions at the time of insurance or issuance thereof as determined by the Borrower and the Administrative Agent or otherwise be reasonably acceptable to the initial Revolving Commitments and without any further amendment Administrative Agent (it being understood that terms differing from those with respect to this Agreement.the applicable Facility are acceptable if (1) the
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Closing Date, the Borrowers may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”, together with the Incremental Revolving Commitments, the “Incremental Commitments”), in an aggregate amount not to exceed $1,605,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Revolving Borrowers or the Term Loan Borrower, as applicable, propose that such Incremental Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Revolving Borrowers or the Term Loan Borrower, as applicable, to arrange a syndicate of Lenders willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and (z) any Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Revolving Borrowers or the Term Loan Borrower, as applicable, and the Administrative Agent, and, if an Incremental Revolving Commitment, the Issuing Bank and the Swingline Lender (each of which approvals shall not be unreasonably withheld), unless such Incremental Revolving Loan Lender or Incremental Term Loan Lender is an existing Lender. The terms and provisions of any Incremental Revolving Commitments shall be identical to the existing Revolving Commitments. The terms and provisions of any Incremental Term Loan Commitments and any facility under which Incremental Term Loans shall provide that (a) the maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the Term Loan Maturity Date and shall not have any scheduled amortization payments prior to such date, (b) the Incremental Term Loans shall share ratably in any prepayments of the existing Term Loan Facility, unless the Term Loan Borrower and the Incremental Term Loan Lenders in respect of such Incremental Term Loans or elect lesser payments and (c) except as otherwise provided below with respect to upfront fees, the Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering Term Loans shall otherwise be identical to the Administrative Agent an Additional Credit Extension Amendment specifying existing Term Loans. NAI-1534296381v11534296381v7 The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (yii) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower recent month for which financial statements have been delivered pursuant to Section 5.01, the Company would have been in compliance with the Financial Covenants that are available;
applicable at such time; (Dy) the representations and warranties made or deemed made by the Borrowers in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects, respects on the effective date of such Incremental Commitments except and solely to the extent required by that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the lenders providing such Incremental Facility;
Loan Documents; and (Ez) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrowers to authorize such Incremental Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Subsidiary Guarantor authorizing the Subsidiary Guaranty by such Subsidiary Guarantor of such Incremental Commitments; provided that and (ii) a customary opinion of counsel to the Borrowers and the Subsidiary Guarantors (which may be in substantially the same form as delivered on the Closing Date and may be delivered by internal counsel of the Borrowers), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Revolving Borrowers or the Term Loan Borrower, as applicable, payable to any new Lender, and replacement notes executed by the Revolving Borrowers or the Term Loan Borrower, as applicable, payable to any existing Lenders. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to its Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender shall share ratably make a Loan to the Term Loan Borrower (an “Incremental Term Loan”) in any mandatory prepayments of 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 applicable Incremental Term Facility unless the Parent Borrower Loan Commitment and the lenders Incremental Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect of such Incremental Term Facility elect lesser payments;
thereof (Hy) any the Incremental Revolving Commitments and the Incremental Revolving Loans Loan Lenders or the Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable, and (z) in respect thereof the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The upfront fees payable to the Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders shall be determined by the Revolving Borrowers or the Term Loan Borrower, as applicable, and the applicable Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders. The Incremental Commitments shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by the Revolving Borrowers or the Term Loan Borrower, NAI-1534296381v11534296381v7 as applicable, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.04.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Cooper Companies, Inc.)
Incremental Facilities. (a) The At any time following the Third Restatement Effective Date, the Parent Borrower and/or any Additional Borrower and any on behalf of the Borrowers may by written notice to Administrative Agent elect to request the establishment of one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or increases in Revolving Credit Commitments (any such increased Revolving Commitments, the “Incremental Revolving Credit Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), by an aggregate principal amount (which amount for purposes of this limitation shall be calculated exclusive of (A) the amount any New Term Loan Commitments (as applicable, by executing defined in the CF Agreement) in respect of Refinancing Term Loans (as defined in the CF Agreement) and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying Ratio First Lien Indebtedness and (iB) the amount of such increase and the Facility or Facilities involved, any Replacement Revolving Credit Commitments (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) as defined in the case CF Agreement)) not in excess of Incremental Term Loans, the Free and Clear Amount at such time and not less than $100,000,000 individually (w) the applicable Incremental Term Maturity Date, or such lesser amount as (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated may be approved by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition Administrative Agent or (y) otherwiseshall constitute the entire Free and Clear Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Parent Borrower on behalf of the Borrowers proposes that the Incremental Revolving Credit Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as the Administrative Agent may reasonably agree) after the date on which such notice is delivered to the Administrative Agent. The Parent Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the Incremental Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment. In each case, such Incremental Revolving Credit Commitments shall become effective as of the applicable Incremental Facility Activation Increased Amount Date, immediately prior to and ; provided that (i) no Event of Default shall exist on such Increased Amount Date before or after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or such Incremental Revolving Commitments pursuant thereto)Credit Commitments, no Default or Event as applicable (ii) each of Default has occurred and is continuing or the conditions set forth in Section 7 shall result therefrom;
be satisfied; (Ciii) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made Pro Forma Compliance with the proceeds thereof)), with the financial covenants covenant set forth in Section 7.1, recomputed as 10.8 of the last day CF Agreement; (iv) the Incremental Revolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (v) the Parent Borrower, on behalf of the most recently ended fiscal quarter of Borrowers, shall make any payments required pursuant to Section 2.11 in connection with the Incremental Revolving Credit Commitments, as applicable; and (vi) the Parent Borrower for which financial statements are available;shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with such transaction.
(Db) in no event shall it be a condition to the effectiveness of, or Borrowing under, On any Increased Amount Date on which Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichRevolving Credit Commitments are effected, subject to customary conditions the satisfaction of the foregoing terms and conditions, (including no payment or bankruptcy event a) each of defaultthe Lenders with Revolving Credit Commitments shall assign to each Lender with an Incremental Revolving Credit Commitment (each, a “Incremental Revolving Loan Lender”) and each of the Incremental Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof (together with accrued interest), would either automatically such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be converted into or required necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be exchanged held by existing Revolving Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment shall be deemed for permanent Indebtedness that does not have all purposes a shorter weighted average life Revolving Credit Commitment and each Loan made thereunder (a “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to maturity than the Initial Term Facility);Incremental Revolving Loan Commitment and all matters relating thereto.
(Fc) all [Reserved].
(d) The terms and provisions of the Incremental Term Revolving Loans and any Revolving Loans made in respect of Incremental Revolving Credit Commitments shall rank pari passu in right of payment and right of security in respect of be identical to the Collateral with the Term Revolving Credit Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;Credit Commitments.
(Ge) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Each Joinder Agreement may, all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provision of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.14.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may, on no more than five occasions, by written notice to the Administrative Agent, request (i) one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase increases in the amount of their Incremental Term Loans or the Revolving Commitments of any Class (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Commitment Increase”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term LoansCommitments (which may be in the form of increases to any existing Term Loans or new Term Loan tranches), (w) in each case in a minimum amount of $5,000,000, provided that the applicable aggregate amount of all the Incremental Revolving Commitment Increases and Incremental Term Maturity Date, (x) Commitments to be established hereunder on any date shall not exceed the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
sum of (A) the aggregate principal amount (or committed amount, if applicable) Incremental Base Amount as of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
such date plus (B) (x) with respect to any assuming that the full amount of such Incremental Revolving Commitment Increases and/or such Incremental Term Commitments have been funded as Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”on such date, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisitionan additional aggregate amount, merger or similar agreement governing such acquisition or (y) otherwisethat, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making establishment of any Incremental Revolving Commitment Increases and/or Incremental Term Loans Commitments and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting use of proceeds thereof and any Permitted Acquisition made with thereof, the proceeds thereof)), with the financial covenants set forth Borrower shall be in Section 7.1pro forma compliance, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower Test Period for which financial statements are available;
have been delivered pursuant to Section 5.01(a) or 5.01(b) (D) in no event shall it be a condition or, prior to the effectiveness ofdelivery of any such financial statements, the last day of the last fiscal quarter included in the Latest Financial Statements), with a Total Leverage Ratio that is no greater than 3.50:1.00; provided further that the Borrower may elect to use clause (B) above (in whole or in part) prior to using all or a portion of clause (A), or Borrowing undercombine the use of clauses (A) and (B), and, if clauses (A) and (B) are available at the time of such incurrence and the Borrower does not make an election, the Borrower will be deemed to have elected to use clause (B) first. Each such notice shall specify (1) the date on which the Borrower proposes that the Incremental Revolving Commitment Increases or the Incremental Term Commitments, as applicable, shall be effective, and (2) the amount of the Incremental Revolving Commitment Increase or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Facility that any representation Revolving Commitment Increase or warranty of any Loan Party be true and correct Incremental Term Commitment may elect or decline, in all material respectsits sole discretion, except and solely to the extent required by the lenders providing provide such Incremental Facility;
Revolving Commitment Increase or Incremental Term Commitments, (Ey) the weighted average life Borrower shall not be required to maturity approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the Borrower proposes to become a Lender under any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment Commitment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Commitment Increase, if such Person that is not then a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Lender, all terms of any Incremental Term Facilitymust be an Eligible Assignee and, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent Agent would be required for an assignment of such Loans or Commitments pursuant Commitment to Section 10.6 (such consent not to be unreasonably withheldLender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Commitment Increase, if any consent of each Issuing Bank would be required for an assignment of Revolving Loans or a Revolving Commitment to such Lender, each Issuing Bank).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that any interest margins, commitment fees, pricing and rate floors applicable to any Incremental Revolving Commitment Increase may exceed the Issuing interest margins, commitment fees, pricing and rate floors payable with respect to the Revolving Loans and/or Revolving Commitments pursuant to the terms of this Agreement, as amended through the date of 86 such calculation, in which case the Applicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case as in effect for the other Revolving Loans and Revolving Commitments, shall be automatically increased to eliminate such excess (it being understood that additional upfront or similar fees may be payable to the Lenders participating in such Incremental Revolving Commitment Increase without any requirement to pay such amounts to any existing Revolving Lenders). The terms and conditions of any Incremental Term Commitments and the Swingline Lender Incremental Term Loans to be made thereunder shall be set forth in the applicable Incremental Facility Agreement; provided that (A) no Incremental Term Loan Maturity Date shall be earlier than the latest Maturity Date then in effect, (B) the scheduled amortization and optional or mandatory prepayment terms and provisions, including in respect of the allocations of payments to or within any such Class of any such Incremental Term Loans shall be based on current market terms at the time of incurrence thereof, (C) no Incremental Term Loan shall be secured, and (iiD) any other terms shall become be as agreed between the Borrower and the lenders providing such Incremental Term Loans; provided that no Incremental Term Loan shall be subject to a Lender under restrictive covenant not previously provided for in this Agreement unless this Agreement is amended to include such restrictive covenant for the benefit of all Lenders. Any Incremental Term Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) Unless otherwise agreed The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Term Commitments or Incremental Revolving Commitment Increase, as the case may be, and the Administrative Agent, on each ; provided that no Incremental Facility Closing Date with respect to the Term Commitments or Incremental Revolving Facility, each Borrower Commitment Increases shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower become effective unless (andsubject, in the case of Eurocurrency Loans or Incremental Term Benchmark LoansCommitments incurred to finance a Limited Condition Transaction, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if to Section 1.08):
(i) each no Event of Default (or in the case of Incremental Term Commitments incurred to finance a Limited Condition Transaction, no Event of Default described in clause (a), (b), (i) or (j) of Section 7.01) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Type, Eurocurrency Tranche Incremental Term Commitments or Term Benchmark Tranche had been borrowed or effected by such Borrower Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such Incremental Facility Closing Date and date;
(ii) on the aggregate date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that the requirement in this clause (ii) shall only apply to Incremental Term Loans to the extent requested by the applicable Incremental Term Lenders; provided further, that in the case of Incremental Term Commitments incurred to finance a Limited Condition Transaction, such representations and warranties shall be limited to Specified Representations;
(iii) after giving pro forma effect to the establishment of any Incremental Revolving Commitment Increase or Incremental Term Loans, the incurrence of any Loans thereunder and the use of the proceeds thereof, and assuming that the full amount of such Incremental Revolving Commitment Increases shall have been funded as Loans on such date, the Borrower shall be in pro forma compliance with each such TypeFinancial Maintenance Covenant, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had recomputed as of the last day of the most recently ended Test Period for which financial statements have been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed delivered 87 pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans Section 5.01(a) or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable 5.01(b) (or, until prior to the expiration delivery of any such financial statements, the last day of the then-current Interest Period, last fiscal quarter included in the Latest Financial Statements); and
(iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such other rate as shall be agreed upon between the Parent Borrower Incremental Term Commitments or Incremental Revolving Commitment Increase and the relevant related transactions under this Section. Each Incremental Facility Agreement may, without the consent of any Lender), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to give effect to the provisions of this Section.
(d) Notwithstanding anything 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 the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Loans of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only to the extent) necessary to reflect the existence or Lenders in respect of Commitments and terms Loans of the Incremental Term applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving CommitmentsLoan Documents, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.and
Appears in 1 contract
Sources: First Amendment (Costar Group, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions after the Closing Date, by written notice to the Administrative Agent, request:
(including New Lendersi) may from time to time agree that such Lenders shall make, obtain or an increase the amount of their Incremental Term Loans or in any Revolving Commitments (any such increased each, a “Revolving CommitmentsCommitment Increase” and the commitments in respect thereof, “Incremental Revolving Commitments” and ”),
(ii) one or more new term loan commitments of the same Class as any facility under which such Incremental outstanding Term Loans Loan (each, a “Term Loan Increase”), or
(iii) the addition of one or Incremental Revolving Commitments are made availablemore new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan Increases, the “Incremental Facilities”); provided that the aggregate amount of all the Incremental Commitments at any time shall not exceed the Permitted Incremental Amount applicable to the Incremental Commitments at such time less the aggregate amount of Incremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as applicable, may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iii) the amount of such increase and the Facility or Facilities involved, Incremental Commitments being requested (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loans Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Applicable Margin for Borrower proposes to become an Incremental Lender, if such Incremental Term Loans; providedPerson is not then a Lender, that:an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent).
(Ab) the aggregate principal amount (or committed amount, if applicable) The terms and conditions of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event,
(Bi) (x) with respect if the Weighted Average Yield applicable to any Incremental Term Loans being incurred issued on or prior to finance a Permitted Acquisition or a similar permitted Investment designated the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the Parent Borrower applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of amended through the date of entry such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased to a level such that the Weighted Average Yield with respect to the Tranche B Term Loans is 0.50% per annum below the Weighted Average Yield with respect to such Incremental Loans (other than a shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter than the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as then-remaining Weighted Average Yield of the applicable Incremental Facility Activation DateTranche B Term Loans); provided, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of that, if any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoLoans, as applicable, include a 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), no Default but only to the extent an increase in the Eurodollar or Event Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Eurodollar or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans shall be increased to the extent of Default has occurred and is continuing or shall result therefromsuch differential between interest rate floors;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Eii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Initial Tranche B Term Loans),
(iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (except in the case of other than an earlier maturity date for customary high-yield bridge loans financings, which, subject to customary conditions (including no payment or bankruptcy event of default)conditions, would either be automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to financing the stated maturity of which shall be no earlier than the Initial initial Tranche B Term FacilityMaturity Date);
(Fiv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and the Incremental Lenders and (y) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all other terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between terms of the Parent Borrower and the lenders for such Incremental Tranche B Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned)material respect, shall be reasonably satisfactory to the Administrative Agent (except for covenants and terms that apply solely to any period after the latest Maturity Date that is in effect on the effective date of such Incremental Facility Agreement) (it being understood that to the extent any financial maintenance covenant is added for the benefit of any Incremental Term Loans or any Incremental Term Commitments, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is also added for the benefit of any Tranche B Term Loans remaining outstanding after the effectiveness of such Incremental Facility Agreement);
(v) any Incremental Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Term Loans, as specified in the applicable Incremental Facility Agreement;
(vi) any Incremental Commitments and Incremental Loans shall, as elected by the Borrower, be equal or junior in right of payment with any remaining portion of the Facilities and, with respect to security with any remaining portion of the Facilities, pari passu, junior or unsecured and shall not be secured by any assets other than the Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any such Incremental Commitments or Incremental Loans that are pari passu with or junior to the Facilities with respect to security shall be subject to the Pari Passu Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement, as applicable);
(vii) the proceeds of any Incremental Facility shall be used for general corporate purposes, including to finance growth Capital Expenditures, to make Permitted Acquisitions and the related transactions and payment of fees and expenses with respect thereto, to make Restricted Payments and to refinance existing Indebtedness to the extent permitted hereunder, or for any other purpose not prohibited by this Agreement; and
(viii) the Incremental Revolving Commitments and Incremental Revolving Loans shall be identical to the Revolving Commitments and the Revolving Loans, other than as to their Maturity Date and as set forth in this Section 2.21; 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 and immediately after giving effect to such Incremental Commitments and the making of Incremental Loans thereunder to be made on such date, (ii) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below), on the date of effectiveness thereof, the representations and warranties set forth in Article III and in the other Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case, on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects as of such prior date, (iii) after giving effect to such Incremental Revolving LoansCommitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Issuing Lenders and Borrower shall be in compliance with the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date Financial Covenants set forth in Section 6.12 with respect to the Revolving Facility, each Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis and (iv) the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference have delivered or caused to have been delivered to the amount of each Type of Loan of Administrative Agent such Borrower (andcustomary legal opinions, in the case of Eurocurrency Loans or Term Benchmark Loansboard resolutions, of each Eurocurrency Tranche or Term Benchmark Tranchesecretary’s certificates, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date officer’s certificates and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate documents as shall reasonably be agreed upon between requested by the Parent Borrower and the relevant Lender)Administrative Agent in connection with any such transaction.
(d) Notwithstanding anything to the contrary foregoing provisions of this Section 2.21 or in this Agreementany other provision of any Loan Document, each if the proceeds of the parties hereto hereby agrees that, on each any Incremental Facility Closing Dateare intended to be applied to finance a Limited Condition Acquisition, this Agreement shall be amended to the extent (but only agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the extentBorrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: (i) (x) on the date of execution of the definitive documentation with respect to such Limited Condition Acquisition, all the requirements set forth in clause (c)(i) and (ii) above shall be satisfied and (y) on the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Loans, (A) no Event of Default under Section 7.01(b), (c), (g) or (h) shall have occurred and be continuing and (B) the only representations and warranties the accuracy of which shall be a condition to funding such Incremental Loans shall be the Specified Representations (conformed as necessary to reflect apply to such Limited Condition Acquisition) and the existence Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and terms warranties set forth in Article III on the date of such closing and funding of such Limited Condition Acquisition, it being understood and agreed that only the representations and warranties set forth in clause (B) shall be conditions to funding of such Incremental Loans on such closing date; (ii) after giving effect to such Incremental Commitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the Financial Covenants set forth in Section 6.12 with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Term Loans Commitments on a pro forma basis and (iii) the Borrower shall have delivered or Revolving Commitments evidenced thereby. Any caused to have been delivered to the Administrative Agent such amendment customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction.
(e) Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be effected necessary or appropriate, in writing by the opinion of the Administrative Agent, to give effect to the provisions of this Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Parent Borrower and furnished in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the other parties heretointerests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans to be fungible for United States federal income tax purposes with another Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder.
(ef) The Closing Date Upon the effectiveness of an Incremental Revolving Commitments Commitment of any Incremental Lender, such Incremental Lender shall be provided on deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the Closing Date applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Commitments, subject Commitments and Incremental Loans for all purposes of this Agreement.
(g) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.
(h) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 5 to 2.21(a) and of the same extent applicable to effectiveness of any Incremental Commitments, in each case advising the initial Revolving Commitments and without any further amendment to this AgreementLenders of the details thereof.
(i) This Section 2.21 shall supersed
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower and any time, on one or more Lenders (including New Lenders) may from time occasions pursuant to time agree that such Lenders shall make, obtain an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of their Incremental the Term Loans or Revolving Commitments of any existing Class by requesting new commitments to provide such Term Loans (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans new Class or Incremental Revolving Commitments are made availableincrease, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any 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 such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) i.e., by conforming or adding a term to the amount of such increase and the Facility or Facilities involved, (ii) then-outstanding Term Loans pursuant to the applicable Incremental Facility Closing DateAmendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (iiibut not the substance) of the applicable Borrower(sagreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (ivtaken as a whole) at the time of incurrence or issuance (as determined by the Borrower in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Capgood faith);
(Bv) (x) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans being incurred withinon any date after the First Amendment Effective Date that is on or prior to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and day that is continuing as six months after the ClosingFirst Amendment Effective Date in an aggregate principal amount in excess of the date greater of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (x) $105,000,000 and (y) otherwise, as 0.75% of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of Test Period calculated on a Pro Forma Basis (the Parent Borrower for which financial statements are available;
(D“MFN Threshold”) in no event shall it be a condition to the effectiveness of, or Borrowing under, under any Incremental Facility that any representation or warranty (A) consists of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary highsyndicated floating rate Dollar-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental denominated Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank that are pari passu with the Initial2019 New Term Loans in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth security, (B) is originally incurred in this Section 2.25(areliance on the Ratio Based Incremental Amount (but not any reclassification thereunder), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory (C) is scheduled to mature prior to the Administrative Agent; provided date that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower is one year after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Initial Term Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Maturity Date and (iiD) is not incurred or established in connection with a Permitted Acquisition or any other Investment permitted hereby (the aggregate amount of each such Typeforegoing sub-clauses (A) through (D), Eurocurrency Tranche or Term Benchmark Tranche requested to the “MFN Conditions”), the Effective Yield applicable thereto may not be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.more than
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) The Parent After the Second Restatement Date, the Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain add one or increase the amount of their more new term loan commitment tranches (each an “Incremental Term Loans or Revolving Commitments (Commitment”, and any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental 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) no more than four Incremental Facilities may be implemented by the Borrower during the term of this Agreement and the aggregate principal amount of each Incremental Facility shall not exceed the Incremental Available Amount (determined at the time of incurrence of each Incremental Facility);
(b) 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 that, as applicableof the effective date of such Incremental Facility, by executing no Specified Event of Default shall have occurred and delivering be continuing or would result from such Incremental 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, 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 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 on and as of the effective date of such Incremental Facility), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects 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 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 an Additional Credit Extension Amendment specifying Agent:
(i) a certificate of each Loan Party dated as of the amount date of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, signed by a Responsible Officer of such Loan Party (iiiA) certifying and attaching resolutions adopted by the applicable Borrower(s) board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (ivB) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Term LoansFacility, (w1) subject to Section 1.07 with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, the applicable Incremental Term Maturity Daterepresentations 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 (x) or in the amortization schedule for case of any such Incremental Term Loans 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 (y2) the Applicable Margin for such Incremental Term Loans; provided, that:
subject to Section 1.07 (Aand pursuant to clause (b) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (xabove) with respect to any Incremental Term Loans being Facility incurred to finance in connection with a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Condition Acquisition”, no Default or Specified Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwiseDefault, as of applicable, exists;
(ii) such amendments to the applicable Incremental Facility Activation Date, immediately prior Collateral Documents as the Administrative Agent may reasonably request to and cause the Collateral Documents to secure the Obligations after giving effect to any Additional Credit Extension Amendment such Incremental Facility (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretocollectively “Collateral Document Amendments”), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Ciii) opinions of legal counsel to the Parent Borrower shall be Loan Parties in complianceform 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 any the effective date of such Incremental Facility Activation Date, on Facility; and
(iv) a pro forma basis (including Pro Forma Compliance Certificate demonstrating that after giving pro forma effect to the applicable Additional Credit Extension Amendment incurrence of such Incremental Facility on a Pro Forma Basis (including and for purposes of the making of any Incremental Term Loans and calculation under this clause (iv) assuming any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are Facility is fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), Loan Parties would be in compliance with the financial covenants set forth in Section 7.1, 7.11 recomputed as of the last day end of the period of the four fiscal quarters most recently ended fiscal quarter of the Parent Borrower for which the Borrower has delivered financial statements are availablepursuant 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;
(Dh) in no event shall it be a condition to the effectiveness of, or Borrowing under, any case of an Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Term Facility;:
(Ei) the weighted average life to interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity of any date for such Incremental Term Facility shall be no as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the weighted average life to maturity later of the Initial Term Facility (except latest maturity date set forth in the case definition of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event “Maturity Date” and the latest maturity date of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial any previously incurred Term Facility)Loan under this Agreement;
(FB) all the Weighted Average Life to Maturity of such Incremental Term Facility shall not be shorter than the Weighted Average Life to Maturity of any previously incurred Term Loan; and
(C) in the event that the Effective Yield for any Incremental Term Loan is greater than the then lowest Effective Yield for any of the 2023 Term Loans and/or the 2021 Replacement Term Loans then outstanding (any such difference, a “Yield Differential”) by more than 0.50%, then the Applicable Rate (and/or, as provided in the proviso below, the Term SOFR or Base Rate “floor”) applicable to the 2023 Term Loans and/or the 2021 Replacement Term Loans (as applicable) shall, in each case, each be increased to the extent necessary so that the Yield Differential for each of the 2023 Term Loans the 2021 Replacement Term Loans is 0.50%; provided, that, to the extent any portion of the Yield Differential is attributable to a higher Term SOFR “floor” being applicable to such Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with 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 outstanding Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is increased to an amount not a Loan Partyto exceed the Term SOFR “floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding;
(Gii) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments other term loans under this Agreement after giving effect to such Additional Credit Extension Amendment;
(Ior otherwise provide for more favorable prepayment treatment for the then outstanding term loans under this Agreement) without and shall have ratable voting rights as the consent of other term loans under this Agreement (or otherwise provide for more favorable voting rights for the Administrative Agent, (x) each increase effected pursuant to then outstanding term loans under this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing DateAgreement); and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any the Incremental Revolving LoansCredit Facility, the Issuing Lenders interest rate, interest rate margins, fees, discount, prepayment premiums, and final maturity date for the Swingline Lender and (ii) Incremental Revolving Credit Facility shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise be as agreed by the Administrative AgentLoan Parties and the Lenders providing the Incremental Revolving Credit Facility; provided, on each there shall be no scheduled commitment reductions applicable to such Incremental Revolving Credit Facility Closing Date with respect to and the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan final maturity of such Borrower (andIncremental Revolving Credit Facility shall not be, in each case, earlier than the case later of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing the Maturity Date and (ii) the aggregate amount latest maturity date of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to previously incurred term loan under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to each of the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall be true and correct in all respects) (x) with respect to Incremental Term Loans being incurred to finance a Limited Conditionality Acquisition, except as of the date of execution and solely to delivery of the extent required applicable acquisition, merger or similar agreement governing such acquisition (provided that, if agreed by the lenders Lenders providing such Incremental FacilityTerm Loans, the only representations and warranties that shall be required to be true and correct shall be those as are customarily required to be so true and correct in an acquisition subject to limited conditionality (which representations and warranties shall be required to be true and correct in all material respects as of the applicable Incremental Facility Activation Date, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be required to be so true and correct in all material respects as of such earlier date)) or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments (or Revolving Loans in respect thereof) pursuant thereto), in each case, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date;
(E) the weighted average life to maturity of any Incremental Term Facility (other than the Specified Incremental Loans) shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Amendment and Restatement Effective Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such TypeType or, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such TypeType or, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or may at any Additional Borrower time and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders time, by delivery to the Administrative Agent of a written notice signed by a Responsible Officer of the Borrower (whereupon the Administrative Agent shall makepromptly deliver a copy to each of the Lenders), obtain or increase request the amount addition of their Incremental Term Loans or Revolving Commitments a new tranche of term loans (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Term Facility”), as applicablea new tranche of revolving loans (an “Incremental Revolving Tranche Facility” and, by executing and delivering to together with the Administrative Agent Incremental Term Facility, the “Incremental Facilities”) or an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Aggregate Revolving Credit Commitments (an “Incremental Term Loans, (wRevolving Commitment”) the applicable Incremental Term Maturity Date, (x) the amortization schedule or a combination thereof in an aggregate amount for all such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans Facilities and Incremental Revolving CommitmentsCommitments at any time outstanding not exceeding, together with 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 Revolving Commitment and (b) the maximum amount of such Incremental Facility or Incremental Revolving Commitment which may be 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 Permitted Incremental Equivalent Debt, shall not exceed such request and upon the effectiveness of the Incremental Cap;
Facility Amendment referred to below, (Bi) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist, and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (yii) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower Holding shall be in compliancePro Forma Compliance; provided, as further, that for purposes of any Incremental Facility Activation Date, on a pro forma basis clause (including giving pro forma effect to b) and clause (ii) in the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingproviso above, in the case of any Additional Credit Extension Amendment with respect to an Incremental Revolving Commitments that Tranche Facility or Incremental Revolving Commitment, the Consolidated Senior Secured Leverage Ratio and the Financial Covenants shall be calculated as if such commitments are Incremental Revolving Tranche Facility or Incremental Revolving Commitment were fully drawn) without drawn but using only the netting of proceeds thereof actual Total Revolving Credit Outstandings (and any Permitted Acquisition made with not the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as amount of the last day of Revolving Credit Commitment) under the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) Revolving Credit Facility in no event shall it be a condition effect immediately prior to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty closing of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Revolving Tranche Facility or Incremental Revolving Commitment. Each Incremental Term Facility shall be no earlier in an aggregate principal amount not less than the weighted average life to maturity of the Initial Term $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 (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(Fa) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu or junior in right of payment and right of security in respect of with the Collateral with Revolving Credit Loans and the Term Loans and shall contain provisions as to the Revolving Loans and none of requirement that any Lien thereunder on an property also granted to or held by the obligors or guarantors with respect thereto Administrative Agent under any Loan Document shall be a Person that is released on any Collateral Release Date as provided herein, (b) in the case of an Incremental Revolving Tranche Facility, shall not a Loan Party;
(G) except mature earlier than the Termination Date with respect to pricing and fees or as otherwise set forth the Revolving Credit Facility, (c) in this Section 2.25(a), all terms the case of any an Incremental Term Facility, if shall not consistent mature earlier than the Termination Date with respect to the applicable existing Term A Facility (but may, subject to clause (d) below, have amortization and commitment reductions prior to such date), (d) in the case of an Incremental Term Facility, shall be determined between have a weighted average life that is not less than that of the Parent Borrower and Term A Loans, (e) in the lenders for such case of an Incremental Term Facility Facility, for purposes of rights to payment, prepayments and reasonably satisfactory 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; provided that each Incremental Term Facility . Any such notice shall share ratably in any mandatory prepayments set forth the amount and terms of the applicable Term relevant Incremental Facility unless or Incremental Revolving Commitment requested by the Parent Borrower and the lenders in respect of to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and or providing such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent Commitment. The Borrower may arrange for one or more banks or other financial institutions, each of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), 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 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 Incremental Facility or provide a portion of such Incremental Revolving Commitment. Commitments in the case respect of Incremental Facilities or any Incremental Revolving LoansCommitment shall become Commitments under this Agreement, the Issuing Lenders and the Swingline each Additional Lender and (ii) shall become a Lender under this Agreement Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Credit Extension Amendment.
(c) Unless otherwise agreed by Lender, if any, and the Administrative Agent, on each . An Incremental Facility Closing Date with respect Amendment may, without the consent of any other Lenders, effect such amendments to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date this Agreement and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended Loan Documents to the extent (but only to the extent) necessary to reflect effect the existence and terms provisions of the this Section. The effectiveness of any Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may Facility Amendment shall be effected in writing by the Administrative Agent and the Parent Borrower and furnished subject to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided satisfaction on the Closing Date as Incremental Revolving Commitments, subject to date thereof of each of the conditions set forth in Section 5 subsection 6.2 (it being understood that all references to “the date of such Borrowing” in such subsection 6.2 shall be deemed to refer to the same extent applicable to effective date of such Incremental Facility Amendment) and the initial delivery of customary legal opinions. The proceeds of the Incremental Facilities or any Incremental Revolving Commitments Commitment will be used for working capital and without any further amendment to this Agreementother general corporate purposes.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Incremental Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, Date and (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(Ai) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent DebtDebt and the outstanding principal amount (or committed amount, if applicable) of any Term Loans or Revolving Commitments, shall not exceed the Incremental Cap$1,350,000,000;
(Bii) (xA) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (yB) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment Incremental Facility Activation Notice (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Ciii) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment Incremental Facility Activation Notice (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment Incremental Facility Activation Notice with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(Div) in no event shall it be a condition to each of the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall be true and correct in all respects) (A) with respect to Incremental Term Loans being incurred to finance a Limited Conditionality Acquisition, except solely as of the date of execution and solely delivery of the applicable acquisition, merger or similar agreement governing such acquisition or (B) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the extent required by applicable Incremental Facility Activation Notice (including the lenders providing making of any Incremental Term Loans or Incremental Revolving Commitments (or Revolving Loans in respect thereof) pursuant thereto), in each case, unless stated to relate to a specific earlier date, in which case, such Incremental Facilityrepresentations and warranties shall be true and correct in all material respects as of such earlier date;
(Ev) [reserved];
(vi) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Tranche A Term Facility;
(vii) [reserved];
(viii) with respect to any Incremental Term Facility having terms customary for a tranche A term loan facility incurred on or before the date that is the eighteen-month anniversary of the Restatement Effective Date, if the total yield (except calculated for both the Incremental Term Loans and the Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below but excluding any arrangement, underwriting, structuring or similar fee paid by the Borrower and not paid to Lenders generally)) in respect of any such Incremental Term Loans exceeds the case total yield for the existing Tranche A Term Loans by more than 0.50% (it being understood that any such increase may take the form of customary high-yield bridge loans which, subject to customary conditions original issue discount (including no payment or bankruptcy event of default“OID”), would either automatically be converted into or required with OID being equated to be exchanged for permanent Indebtedness that does not have the interest rates in a shorter weighted average manner determined by the Administrative Agent based on an assumed four-year life to maturity maturity), the Applicable Margin for the Tranche A Term Loans shall be increased so that the total yield in respect of such Incremental Term Loans is no more than 0.50% higher than the Initial total yield for the existing Tranche A Term FacilityLoans (provided that any increase in yield to any existing Term Loans required due to the application of a Eurocurrency Rate floor or an ABR floor on any Incremental Term Facility shall be effected solely through an increase in (or implementation of, as applicable) a Eurocurrency Rate floor or ABR floor to the applicable existing Term Loans);
(Fix) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Tranche A Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan PartyLoans;
(Gx) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a2.25(a)(vi) and (viii), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(Hxi) (A) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.Activation Notice;
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Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders (including New Lenders) occasions at any time after the ClosingCovenant Compliance Date, the Borrower may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering written notice to the Administrative Agent elect to request establishment of one or more new term loan commitments (the “Incremental Commitments”), in an Additional Credit Extension Amendment specifying aggregate amount not exceeding $180,000,000160,000,000 that would result in the sum of the original principal amount of all Term Loans made to the Borrower plus all Incremental Commitments not exceeding $500,000,000 in the aggregate. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitment shall be effective, which shall be a date not less than ten (10) Business Days, nor more than 30 Business Days after the date on which such notice is delivered to 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 on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, and integral multiples of $5,000,000 in excess of that amount, (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; 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) 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 “New Term Lender”) 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). The terms and provisions of any Incremental Commitments and any New Term Loans shall (a) provide that the maturity date of any New Term Loan that is a separate tranche shall be no earlier than the Term Maturity Date and shall not have any scheduled amortization payments, (b) share ratably in any prepayments of the existing Term Facility, unless the Borrower and the New Term Lenders in respect of such New Term Loans elect lesser payments and (c) otherwise be identical to the existing Term Loans or reasonably acceptable to the Administrative Agent and each New Term Lender. The effectiveness of any Incremental 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) the amount no Potential Event of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing (ii) as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as last day of the applicable Incremental Facility Activation Datemost recent calendar quarter for which financial statements have been delivered pursuant to Section 8.2, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be would have been in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, recomputed as of 10.1 and Section 10.12; (y) the last day of representations and warranties made or deemed made by the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects, respects on the effective date of such Incremental Commitments except and solely to the extent required by the lenders providing that such Incremental Facility;
representations and warranties expressly relate solely to an earlier date (Ein which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (z) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments; provided that each Incremental Term Facility shall share ratably and (ii) a customary opinion of counsel to the Borrower (which may be in any mandatory prepayments substantially the same form as delivered on the Closing Date and may be delivered by internal counsel of the applicable Term Facility unless Borrower), and addressed to the Parent Borrower Administrative Agent and the lenders 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 any Incremental Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its Incremental Commitment, and (ii) each New Term Lender shall become a Lender hereunder with respect to the Incremental Commitment and the New Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect of such thereof, the Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans New Term Lenders, as applicable. The fees payable by Borrower upon any such increase in respect thereof the Commitments shall be agreed upon by the Administrative Agent and Borrower at the time of such increase. The Incremental Commitments shall be (i) evidenced pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
Amendments executed and delivered by the Borrower, the New Term Lenders, as applicable, and the Administrative Agent, and (Iii) recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender2.1(d).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto2.2 [Reserved].
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (ai) The Parent Borrower and/or One or more Borrowers (or Subsidiary Guarantors that will become Borrowers) may, at any Additional Borrower and any time, on one or more Lenders occasions pursuant to an Incremental Facility Amendment (including New Lendersi) may from time to time agree that such Lenders shall make, obtain add one or more new Classes of term facilities and/or increase the principal amount of their Incremental the Term Loans or Revolving Commitments of any existing Class by requesting new term loan commitments to be added to such Loans (any such increased Revolving Commitmentsnew Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of revolving commitments and/or increase the aggregate amount of the Revolving CommitmentsCommitments of any existing Class (any such new Class or increase, an “Incremental Revolving Facility” and and, together with any facility under which such Incremental Term Loans Facility, “Incremental Facilities”, or Incremental Revolving Commitments are made availableeither or any thereof, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase ; and the Facility or Facilities involvedloans thereunder, (ii) the applicable “Incremental Facility Closing DateRevolving Loans” and, (iii) the applicable Borrower(s) and (iv) in the case of together with any Incremental Term Loans, (w“Incremental Loans”) in an aggregate outstanding principal amount as of such date of determination not to exceed the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term LoansCap; provided, provided that:
(AI) the aggregate principal no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or committed amountsuch lesser amount to which the Administrative Agent may reasonably agree),
(II) except as separately agreed from time to time between a Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(III) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if applicableany, as a lender providing all or part of such Incremental Facility or Incremental Loan,
(IV) of all Incremental Term Loans and any such Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, Facility shall not exceed the Incremental Cap;
(B) either (x) with respect be subject to the same terms and conditions as any then-existing Revolving Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Parent may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition existing Revolving Lenders) or (y) otherwisemature no earlier than, as and require no scheduled mandatory commitment reduction prior to, the 2022 Revolving Loan Maturity Date and all other terms (other than, subject to the requirements of this clause (y), maturity, pricing, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees and other immaterial terms, which shall be determined by the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to Company) shall be (1) substantially consistent with the 2022 Revolving Loans or (2) otherwise reasonably acceptable the Administrative Agent (it being understood that if any Additional Credit Extension Amendment (including financial maintenance covenant or other more favorable provision is added for the making benefit of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Facility, no Default consent shall be required from the Administrative Agent or Event any Lender to the extent that such financial maintenance covenant or other provision is also added for the benefit of Default has occurred and is continuing any then-existing Revolving Facility or shall result therefrom;only applicable after the applicable Latest Maturity Date applicable to any Class of Revolving Loans hereunder),
(CV) the Parent Borrower shall be in compliancepricing, as of interest rate margins, rate floors, undrawn fees and other fees (and the components thereof) applicable to any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it may be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required determined by the Company and the lender or lenders providing such Incremental Facility;,
(EVI) the weighted average life final maturity date with respect to maturity of (x) any Incremental Term Facility Loans that are not Term B Loans shall be no earlier than the weighted average life to maturity 2022 Term A Loan Maturity Date at the time of the Initial incurrence thereof and (y) any Incremental Term Facility Loans that are Term B Loans shall be no earlier than the Latest Maturity Date applicable at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (except in the case of 1) customary high-yield bridge loans with a maturity date not longer than one year which, subject to customary conditions (including no payment or bankruptcy event of default)conditions, would either be automatically be converted into or required to be exchanged for permanent financing which otherwise complies with this clause (VI), or (2) Indebtedness in an aggregate principal amount not to exceed the Inside Maturity Amount,
(VII) the Weighted Average Life to Maturity of (x) any Incremental Term Facility that does not have a consist of Term B Loans shall be no shorter weighted average life to maturity than the Initial remaining Weighted Average Life to Maturity of the 2022 Term A Loans at the time of incurrence thereof and (y) any Incremental Term Facility that consists of Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any outstanding Class of Term Loans at the time of incurrence thereof; provided, that the foregoing limitation shall not apply to (1) customary bridge loans with a maturity date of not longer than one year which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which otherwise complies with this clause (VII), or (2) Indebtedness in an aggregate principal amount not to exceed the Inside Maturity Amount,
(VIII) subject to clauses (VI) and (VII) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Company and the lenders providing such Incremental Term Facility);,
(F1) all each Incremental Term Loans and any Revolving Loans made in respect Facility may, at the option of Incremental Revolving Commitments shall the Company, rank pari passu with or junior to the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and the Amendment No. 1 Incremental Term B Loans in each case in right of payment and right of security in respect payment; (2) each Incremental Facility, at the option of the Company, may be unsecured or secured by Liens on the Collateral that rank pari passu with or junior to the Liens on the Collateral securing the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and the Amendment No. 1 Incremental Term B Loans; provided that, to the extent any Incremental Facility is secured by junior Liens on the Collateral, such Incremental Facility shall be documented in documentation other than the Credit Agreement and the other Basic Documents governing the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Amendment No. 1 Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower B Loans and the lenders for providing such Incremental Term Facility shall be subject to an intercreditor agreement on terms and conditions reasonably satisfactory to the Company and the Administrative Agent; provided that each and (3) no Incremental Facility may be (x) guaranteed by any Person which is not an Obligor or (y) secured by Liens on any assets other than the Collateral;
(X) any Incremental Term Facility may provide for the ability to participate (1) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 3.02(a) and (2) 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 Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 3.02(b) or (c),
(XI) subject in all cases to the Limited Conditionality Provisions, no Event of Default under Section 10.01(1), (6) or (7) shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility,
(XII) no Incremental Term Facility shall share ratably in any mandatory prepayments contain covenants or events of the applicable Term Facility unless default that, taken as a whole, are materially more restrictive on the Parent Borrower and its Subsidiaries or are more favorable to the lenders in respect of such Incremental Term Facility elect lesser payments;prior to the Latest Maturity Date than the covenants applicable to Term Loans in the Basic Documents, unless the Administrative Agent shall so consent (it being understood that if any covenant or event of default is added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such covenant or event of default is also added for the benefit of any then-existing Term Facility),
(HXIII) except as otherwise required or permitted in Section 2.01(d)(i), all terms of any Incremental Revolving Commitments Term Facility shall be as agreed between the Company and the Revolving lenders providing such Incremental Term Facility,
(XIV) on the date of the making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the contrary in respect thereof this Agreement, such Incremental Term Loans shall be pursuant added to (and constitute a part of, be of the same Type as and, at the election of the Company, 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 may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which end on the last day of such Interest Period, and
(XV) notwithstanding anything to the terms hereof otherwise contrary in this Agreement, if any Borrower (or any Subsidiary Guarantor that becomes a Borrower) incurs Qualifying Incremental Term B Loans the effective yield of which is greater than the effective yield of the Amendment No. 1 Incremental Term B Loans (with effective yield to be determined by the Company (in consultation with the Administrative Agent) in good faith in a manner consistent with generally accepted financial practices, giving effect to margins, upfront or similar fees, and original issue discount, in each case, that are shared with all lenders or holders thereof and applicable interest rate floors (it being agreed that (x) to the extent that the benchmark applicable to the Revolving Facility Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Term B Loans, as applicable, on the date that effective yield is being calculated for is less than the interest rate floor therefor, the amount of such difference shall be deemed added to the interest rate margin for the Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Term B Loans, as applicable, for the purpose of calculating the effective yield and (y) to the extent that the benchmark applicable to the Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Revolving Commitments Term B Loans, as applicable, on the date that the effective yield is being calculated is greater than the applicable interest rate floor therefor, then the interest rate floor therefor shall become Revolving Commitments under this be disregarded in calculating the effective yield thereof)) by more than 50 basis points per annum, than the Applicable Margin applicable to the Amendment No. 1 Incremental Term B Loans will be increased to the extent necessary so that the effective yield of the Amendment No. 1 Incremental Term B Loans is equal to the effective yield for such Qualifying Incremental Term B Loans minus 50 basis points per annum. Each Amendment No. 1 Incremental Term B Lender hereby authorizes the Company and the Administrative Agent to enter into one or more amendments to the Amended Credit Agreement after giving to effect any such increase to such Additional Credit Extension Amendment;
(I) the Applicable Margin applicable to the Amendment No. 1 Incremental Term B Loans contemplated by the immediately preceding sentence, without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five any Amendment No. 1 Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Term B Lender shall have or any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionother person.
(bii) Any New Incremental Commitments may be provided by any existing Lender or by any other bank, financial institution or other Person (such other bank, financial institution or other Person, an “Additional Lender”); provided that elects to provide Commitments under an the Administrative Agent (and, in the case of any Incremental Facility (iRevolving Facility, each Issuing Bank) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 shall have consented (such consent not to be unreasonably withheld, delayed conditioned or conditioned), shall be reasonably satisfactory delayed) to the Administrative Agent and, in the case relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 12.06(b) for an assignment of Loans to such Additional Lender.
(iii) Each Lender or Additional Lender providing a portion of any Incremental Revolving Loans, the Issuing Lenders Commitment shall execute and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant deliver to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and furnished to effectuate such Incremental Commitment. On the other parties heretoeffective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(eiv) The Closing Date As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (1) upon its request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (2) the Administrative Agent shall have received from each Additional Lender an administrative questionnaire in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender and (3) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans.
(v) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.01(d):
(I) if such Incremental Revolving Facility establishes Revolving Commitments shall be provided on of the Closing Date same Class as Incremental any then-existing Class of Revolving Commitments, (1) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant lender under the Incremental Facility, and each such relevant lender will automatically and without further act be deemed to have assumed a portion of such Revolving Len▇▇▇’▇ 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 of such Class hold 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 2.01(d)) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments of such Class (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.01(d)); 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 (I); and
(II) if such Incremental Revolving Facility establishes Revolving Commitments of a new Class, (1) the borrowing and repayment (except for (x) payments of interest and fees at different rates on any Revolving Facility, (y) repayments required upon the Maturity Date of any Revolving Facility and (z) repayments made in connection with any permanent repayment and termination of any Revolving Commitments (subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.clause (3) below)) of Incremental
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Incremental Facilities. (a) The Parent Borrower and/or may, any Additional Borrower and any one time or more Lenders (including New Lenders) may from time to time agree that such Lenders shall makeafter the Funding Date, obtain by written notice to the Administrative Agent (an “Incremental Facility Request”) request (x) the establishment of incremental or increase the amount of their additional term loan facilities (each, an “Incremental Term Loans Facility”, the commitments thereunder, the “Incremental Term Commitments” and the loans thereunder, the “Incremental Term Loans”) and (y) the establishment of incremental or additional revolving loan facilities (each, an “Incremental Revolving Commitments (any such increased Revolving CommitmentsFacility”, the commitments thereunder, the “Incremental Revolving Commitments” and any facility under which the loans thereunder, the “Incremental Revolving Loans”). Any such Incremental Facility may be implemented by increasing the amount of loans and commitments under an existing Facility or by adding a new facility to this Agreement. Subject to the terms and conditions set forth in this Section 2.20, the Incremental Term Loans Facilities shall be funded or the Incremental Revolving Commitments are made available, an “shall become available on the relevant Increased Amount Date; provided that no Incremental Facility”), as applicable, by executing and delivering Facility shall be incurred on such date to the Administrative Agent an Additional Credit Extension Amendment specifying extent that the aggregate principal amount of such Incremental Facility when combined with the aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt incurred prior to such date exceeds the sum of:
(i) the amount greater of such increase (A) $690,000,000 and (B) 100% of LTM EBITDA (the Facility or Facilities involved“Free and Clear Incremental Amount”), plus
(ii) an amount equal to the aggregate principal amount of all voluntary prepayments (but, with respect to the Initial Revolving Facility or any Incremental Revolving Facility, only to the extent such voluntary prepayment is accompanied by a permanent reduction of the Initial Revolving Commitments or applicable Incremental Facility Closing DateRevolving Commitments) of the Initial Revolving Loans, Initial Term Loans or any Incremental Loans or Incremental Equivalent Debt that, in each case, is secured on a pari passu basis with the Initial Facilities prior to the date of such incurrence, in each case, so long as an such voluntary prepayment was not funded with the proceeds of Long Term Debt (the “Voluntary Prepayment Amount”), plus
(iii) an amount such that, after giving effect to the applicable Borrower(s) incurrence of such amount and the use of proceeds thereof, (ivA) in the case of any Incremental Facility that is secured on a pari passu basis with the Initial Facilities, the First Lien Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, does not exceed 3.25:1.00, (B) in the case of any Incremental Facility that is secured on a junior basis to the Initial Facilities, the Secured Net Leverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, does not exceed 3.50:1.00 and (C) in the case of any Incremental Facility that is unsecured, the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis for the most recently ended Test Period for which financial statements of the Borrower have been delivered pursuant to Section 5.04, is greater than 2.00:1.00 (provided that the amount of Indebtedness for purposes of such calculation of the First Lien Net Leverage Ratio or Secured Net Leverage Ratio, as applicable, shall (1) not include any principal amount of Incremental Facilities and Incremental Equivalent Debt which is being incurred simultaneously or substantially simultaneously by utilizing the Free and Clear Incremental Amount and (2) assume the Incremental Revolving Commitments, if applicable, are fully drawn) (the “Incurrence-Based Incremental Amount”, and together with the Free and Clear Incremental Amount and the Voluntary Prepayment Amount, the “Incremental Availability Amount”). The Borrower may elect to incur any Incremental Facility or Incremental Equivalent Debt by utilizing the Incurrence-Based Incremental Amount, the Free and Clear Incremental Amount, the Voluntary Prepayment Amount, or any combination thereof. For purposes of the forgoing incurrence test, it is understood and agreed that the proceeds of the applicable Incremental Facility shall not be netted against the applicable Indebtedness included in the calculation of the First Lien Net Leverage Ratio or Secured Net Leverage Ratio, as applicable.
(b) Each such Incremental Facility Request shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments and Incremental Loans shall be made available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion). The Borrower shall notify the Administrative Agent in writing of the identity of each Lender or other Person (each, an “Incremental Lender”) to whom the Incremental Commitments have been allocated, which allocation shall be made at the Borrower’s sole discretion. Any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that the Borrower has no obligation to approach any Lender, and no Lender is committing to provide any Incremental Commitment until such time as such Lender agrees in writing to provide all or a portion of the applicable Incremental Commitment).
(c) As of any Increased Amount Date:
(i) no Default or Event of Default shall exist and be continuing or would immediately result from the incurrence of such Incremental Facility; provided, that solely with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, any Default or Event of Default (other than a Default or Event of Default under Section 7.01(b), (c), (h) or (i)) may be limited or waived solely for purposes of satisfying this Section 2.20(c)(i) by the applicable Incremental Lenders without the consent of the Administrative Agent or any other Lender;
(ii) the Borrower shall be in compliance with Section 6.11 on a Pro Forma Basis and the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in Section 2.20(c)(i), this Section 2.20(c)(ii) and Section 2.20(c)(iii);
(iii) the representations and warranties of each Loan Party contained in Article III or any other Loan Document shall be true and correct in all material respects (provided, that, solely with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, only the Specified Representations (conformed as necessary for such transaction) and customary specified representations contained in the definitive acquisition agreement for such Limited Condition Acquisition shall be required to be true and correct in all material respects) (provided, that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates);
(iv) for any Incremental Facility that increases the Loans and/or Commitments under an existing Term Loan Facility or existing Revolving Facility, as applicable, all terms thereof shall be on the same terms of such existing Term Loan Facility or existing Revolving Facility, as applicable, including with respect to maturity date and interest rates but excluding, unless any such difference in original issue discount or upfront fees would cause any such Incremental Term Facility to not be fungible with the applicable existing Term Loans, original issue discount or upfront fees, and pursuant to the same documentation (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for other than any amendment evidencing such Incremental Term Loans and Facility);
(yv) to the Applicable Margin for extent that such Incremental Facility is not made as part of any existing Term Loans; Loan Facility or existing Revolving Facility, as applicable, the terms and provisions of such Incremental Facility shall be consistent with such existing Term Loan Facility or existing Revolving Facility, as applicable, provided, that:
(A) the aggregate principal amount interest rates applicable to such Incremental Facility shall be as agreed between the Borrower and the applicable Incremental Lenders providing such Incremental Commitments; provided that if the All-In Yield applicable to any Incremental Term Facility or any Incremental Equivalent Debt incurred in the form of term loans, in each case that is (x) incurred on or committed amountprior to the date that is twelve (12) months after the Funding Date and (y) secured on a pari passu basis with the Initial Term Facility, shall be more than 0.50% per annum higher than the corresponding All-In Yield on the Initial Term Facility as of the date of incurrence, then the All-In Yield applicable to the Initial Term Facility shall be increased to cause the then applicable All-In Yield of the Initial Term Facility to equal the All-In Yield then applicable to such Incremental Term Facility minus 0.50% per annum (this provision, the “MFN Protection”); provided that if applicable) of all any Incremental Term Loans and Incremental Revolving Commitmentsinclude a Eurodollar Rate floor or ABR floor that is greater than the Eurodollar Rate floor or ABR floor applicable to any Initial Term Loans, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtsuch differential between Eurodollar Rate floors or ABR floors, as applicable, shall be included in the calculation of All-In Yield for purposes of this clause (A) but only to the extent an increase in the Eurodollar Rate floor or ABR floor applicable to the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Eurodollar Rate floor and ABR floor (but not exceed the Incremental CapApplicable Margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between Eurodollar Rate floors or ABR floors as the case may be;
(B) subject to the Permitted Earlier Maturity Exception, the final maturity date under (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by Facility shall not be earlier than the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as Final Maturity Date of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or Initial Term Facility and (y) otherwise, as any Incremental Revolving Facility shall not be earlier than the Final Maturity Date of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Initial Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefromFacility;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect subject to the applicable Additional Credit Extension Amendment Permitted Earlier Maturity Exception, (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ex) the weighted average life to maturity of amortization requirements for any Incremental Term Facility shall be no earlier determined by the Borrower and the Incremental Lenders thereunder so long as the Weighted Average Life to Maturity applicable to any Incremental Term Facility shall be equal to or greater than the weighted average life Weighted Average Life to maturity Maturity of the Initial Term Facility Loans (except in the case of customary high-yield bridge loans which, subject without giving effect to customary conditions any prepayments (including no payment or bankruptcy event of defaultother than amortization)), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does and (y) any Incremental Revolving Facility shall not have a shorter weighted average life any scheduled amortization or mandatory commitment reductions prior to maturity than the Final Maturity Date of the Initial Term Revolving Facility);
(FD) all the Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments Facility shall rank pari passu or junior in right of payment and of security with the Initial Facilities or may be unsecured (and, to the extent such Incremental Facility is secured on a pari passu basis such Incremental Facility shall be subject to the Intercreditor Agreement, to the extent such Incremental Facility is secured by Liens that rank junior in priority to the Liens securing the Obligations under the Initial Facilities, such Incremental Facility shall be subject to the Junior Lien Intercreditor Agreement and, to the extent such Incremental Facility is subordinated in right of security in respect of payment to the Collateral with Obligations under the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto Initial Facilities, such Incremental Facility shall be subject to a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and subordination agreement reasonably satisfactory to the Administrative Agent; provided that each );
(E) regardless of whether such Incremental Facility is created or incurred under the Loan Documents, such Incremental Term Facility shall share ratably in not be (x) guaranteed by any mandatory prepayments of Person who is not, or will not then be a Guarantor or (y) secured by any assets not constituting or which will not then constitute Collateral under the applicable Term Facility unless Loan Documents; provided, except as otherwise required or expressly permitted by Sections 2.20(c)(v)(A)-(E) above, (w) if the Parent Borrower and the lenders in respect terms of such Incremental Facility are not consistent with the Initial Term Facility elect lesser payments;
(H) any Incremental or the Initial Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to Facility, as applicable, the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), provisions shall be reasonably satisfactory to the Administrative Agent andunless such terms are (1) added for the benefit of all Lenders (or, in the case of a financial covenant with respect to an Incremental Revolving Facility, the Revolving Lenders) pursuant to an Incremental Amendment or (2) are only applicable to periods after the Final Maturity Date of the Term Loan Facility and (x) in the case of any Incremental Revolving LoansFacility, (1) the Issuing Lenders borrowing and repayment (except for (I) payments of interest and fees at different rates on Incremental Revolving Commitments (and related outstandings), (II) repayments required upon the Swingline Lender maturity date of any Revolving Facility and (iiIII) repayment made in connection with a permanent repayment and termination of Revolving Commitments under any Revolving Facility (subject to clause (2) below)) of Revolving Loans after the effective date of such Incremental Revolving Commitments shall become be made on a Lender under this Agreement pro rata basis or less than pro rata basis with all other Revolving Facilities, (2) the permanent repayment of Revolving Loans with respect to, and termination of, Revolving Commitments under, any Revolving Facility after the effective date of any such Incremental Revolving Commitments shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities (or, to the extent such Incremental Revolving Commitments are terminated in full and refinanced or replaced with a Refinancing Revolving Facility or Refinancing Debt, on a greater than pro rata basis) and (3) assignments and participations of such Incremental Revolving Commitments and Incremental Revolving Loans in respect thereof shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans at such time; and
(vi) the terms of such Incremental Facility shall be effected pursuant to an Additional Credit Extension amendment to this Agreement (an “Incremental Amendment.
(c”) Unless otherwise agreed executed and delivered by the Borrower, the Administrative AgentAgent and one or more Incremental Lenders; provided, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on that such Incremental Facility Closing Date and may participate in any mandatory prepayment under Section 2.09(b) hereof on a pro rata basis (ii) the aggregate amount of each such Typeor on a basis less than pro rata), Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)but not on a basis that is greater than pro rata.
(d) Notwithstanding anything On any Increased Amount Date on which any Incremental Commitment becomes effective or Incremental Loans are funded, subject to the contrary in foregoing terms and conditions, each Incremental Lender to the extent not already a Lender, shall become a Lender hereunder with respect to such Incremental Commitment or Incremental Loan; provided, that any Person that becomes an Incremental Lender that is not already a Lender hereunder shall be reasonably satisfactory to the Administrative Agent, the L/C Issuers and the Borrower to the extent consent would be required under Section 9.04(b) for an assignment of Commitments or Loans to such Incremental Lender.
(e) For purposes of this Agreement, each any Incremental Loans shall be deemed to be Loans. Each Incremental Amendment may, without the consent of the parties hereto hereby agrees thatany Lender, on each Incremental Facility Closing Date, effect such amendments to this Agreement shall be amended to and the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment other Loan Documents as may be effected necessary or appropriate, in writing by the reasonable opinion of the Administrative Agent and the Parent Borrower and furnished Borrower, to effect the other parties heretoprovisions of this Section 2.20.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may, by written notice to the Administrative Agent from time to time, request Incremental Loan Commitments from one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans Lenders or Incremental Revolving Commitments are made available, an “Incremental Facility”)Lenders, as applicable, by executing and delivering to all of which must be Eligible Assignees (which Eligible Assignee may not be the Administrative Agent Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments, be an Additional Credit Extension Amendment specifying Affiliated Lender (ibut only if Section 9.04(k) is complied with)), so long as at the amount of time such increase and the Facility or Facilities involvedIncremental Loan Commitments become effective and, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, at the time any Incremental Loans in respect thereof are incurred (w) after giving effect on a pro forma basis to the applicable incurrence of such Incremental Term Maturity DateLoans, (x) and in each case assuming for the amortization schedule for purpose of this calculation that the proceeds of such Incremental Term Loans and (y) the Applicable Margin are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Term Loans; provided, that:
(A) Revolving Loan Commitments are fully drawn in the aggregate principal amount (or committed amount, if applicable) form of all Incremental Term Loans and Incremental Revolving Commitmentsthat the proceeds thereof are not treated as Unrestricted Cash for such purpose), together with the aggregate principal amount of any Permitted such Incremental Equivalent Debt, shall Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Cap;Facilities Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an “Increased Amount Date”) on which such Incremental Loan 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 other number of days as the Administrative Agent may reasonably agree to)) and (iii) whether such Incremental Term Loan Commitments are commitments to make additional Tranche A-1 Term Loans or Tranche A-2 Term Loans or commitments to make term loans with terms different from the Tranche A-1 Term Loans or Tranche A-2 Term Loans (“Other Term Loans”).
(Bb) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any other bank, financial institution or other institutional lender or investor (each of which must be an Eligible Assignee) that agrees to provide any portion of Incremental Loan Commitments (each, an “Additional Incremental Lender”) (xprovided that (i) with respect the Administrative Agent, the Swing Line Lender and each Issuing Bank shall have consented (such consent not to any be unreasonably withheld or delayed) to such Lender’s or Additional Incremental Lender’s making such Incremental Loan Commitments to the extent such consent, if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Incremental Lender, (ii) an Affiliated Lender may provide Incremental Term Loan Commitments or Incremental Term Loans being incurred only if Section 9.04(k) is complied with, but may not provide Incremental Revolving Loan Commitments or Incremental Revolving Loans and (iii) the Borrower and its Subsidiaries may not make Incremental Loan Commitments or Incremental Loans). The Borrower and each Incremental Lender shall execute and deliver to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower Administrative Agent an Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, as a “Limited Conditionality Acquisition”applicable, no Default or Event and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of Default has occurred each Incremental Lender. The terms and is continuing as provisions of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or and/or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower Loans shall be in complianceidentical to those of the Tranche A-1 Term Loans, Tranche A-2 Term Loans and/or Revolving Loans, as of any Incremental Facility Activation Dateapplicable, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingexcept, in the case of any Additional Credit Extension Amendment with respect Other Term Loans, as certain terms and provisions thereof are otherwise permitted hereunder to Incremental Revolving Commitments that such commitments are fully drawn) without deviate from those of the netting of proceeds thereof Tranche A-1 Term Loans and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants Tranche A-2 Term Loans as set forth in Section 7.1the applicable Incremental Term Loan Assumption Agreement; provided, recomputed that the terms and documentation in respect of such Incremental Term Loan Commitments to the extent not consistent with the terms of the existing Tranche A-1 Term Loans or Tranche A-2 Term Loans will apply only to periods after the Latest Maturity Date of any existing Term Loans as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition Increased Amount Date, or, if more favorable to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
Term Loans than the corresponding terms are to Lenders holding existing Term Loans, may apply to the existing Term Loans. All Incremental Revolving Loan Commitments shall be documented solely as an increase to the Revolving Credit Commitments and all Incremental Revolving Loans shall be identical to all Revolving Loans, other than in respect of any arrangement, commitment or upfront fees payable to any Incremental Revolving Lenders or any arranger appointed in connection therewith. Notwithstanding the foregoing, (Ei) the final maturity date of any Other Term Loans shall be no earlier than the Tranche A-2 Term Loan Maturity Date, (ii) the weighted average life to maturity of any Incremental the Other Term Facility Loans shall be no earlier shorter than the weighted average life to maturity of the Initial Tranche A-2 Term Facility Loans and (except iii) if the all-in yield on such Other Term Loans (other than Other Term Loans incurred to finance a Permitted Acquisition) (as reasonably determined by the case Administrative Agent to be equal to the sum of customary high-yield bridge loans which(x) the margin above the Reserve Adjusted Eurodollar Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, subject expressed as a percentage of the Other Term Loans, being referred to customary conditions (including no payment or bankruptcy event of defaultherein as “OID”), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter the amount of such OID divided by the lesser of (A) the weighted average life to maturity than the Initial Term Facility);
(F) all Incremental of such Other Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(GB) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agentfour; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andthat, in the case of any Other Term Loans incurred under clause (a), (b), (c), (d) or (e) of the definition of Maximum Incremental Revolving Facilities Amount, in determining the margin above the Reserve Adjusted Eurodollar Rate, if the Reserve Adjusted Eurodollar Rate in respect of such Other Term Loans includes a floor greater than the applicable floor in respect of the Reserve Adjusted Eurodollar Rate applicable to the Tranche A-2 Term Loans, such excess amounts shall be equated to interest margin for purposes of determining Yield Differential to the Issuing Lenders extent an increase in the interest rate floor in respect of the Reserve Adjusted Eurodollar Rate applicable to the Tranche A-2 Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Swingline Lender and interest rate floor (iibut not the Applicable Margin) applicable to such Tranche A-2 Term Loans shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
be increased) exceeds the all-in yield for Eurodollar Tranche A-2 Term Loans (c) Unless otherwise agreed as determined by the Administrative AgentAgent in a manner consistent with the calculation of the all-in-yield on such Other Term Loans as set forth above) by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), on each Incremental Facility Closing Date with respect to then (x) the Revolving Facility, each Borrower Applicable Margin then in effect for Tranche A-2 Term Loans shall borrow Revolving automatically be increased by the Yield Differential and (y) the Applicable Margin then in effect for the Tranche A-1 Term Loans under the relevant shall automatically be increased Revolving Commitments from each Lender participating in the relevant increase in by an amount determined by reference equal to the amount of each Type of Loan of such Borrower any increase in the Applicable Margin for Tranche A-2 Term Loans pursuant to the foregoing clause (andx), in each case effective upon the case making of Eurocurrency Loans or the Other Term Benchmark Loans, . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Eurocurrency Tranche Incremental Term Loan Assumption Agreement or Term Benchmark TrancheIncremental Revolving Loan Assumption Agreement, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each Each of the parties hereto hereby agrees that, on each upon the effectiveness of any Incremental Facility Closing DateTerm Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.25 unless on the date of such effectiveness, (i) the Borrower is in Financial Covenant Compliance (after giving effect on a pro forma basis to the incurrence of any such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), (ii) the conditions set forth in Sections 4.01(b), 4.01(c) and, if applicable, 4.01(d) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of any Incremental Term Loan Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 4.01(b) to the accuracy of the representations and warranties shall refer to the accuracy of only the representations and warranties that would constitute Specified Representations and the representations and warranties in the relevant acquisition agreement the failure of which to be true shall permit the buyer not to consummate the Permitted Acquisition, (y) Section 4.01(c) shall be limited to there being no Default or Event of Default under paragraph (b), (c), (g) or (h) of Article VII having occurred and continuing after giving effect to such Incremental Loan Commitments and (z) the date of determination for purposes of testing Financial Covenant Compliance under clause (i) above shall be deemed to be the date on which the definitive agreements for such Permitted Acquisition are entered into, (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Commitments evidenced thereby. Any such amendment may be effected in writing Loan Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Parent Closing Date under Section 4.02, (iv) the Administrative Agent and each applicable Lender (other than any Defaulting Lender) shall have received all fees and expenses owed under this Agreement (including in respect of such Incremental Loan Commitments); (v) the Borrower shall have satisfied all Mortgage Modification Requirements; and furnished (vi) in the case of any Incremental Term Loans incurred under clause (e) of the definition of Maximum Incremental Facilities Amount, either (A) the Permitted Drop-Down Acquisition constituting the Southampton Acquisition has been, or substantially concurrent with the incurrence of such Incremental Term Loans, shall be, consummated or (B) (1) the Administrative Agent shall have received the Escrow Agreement, duly executed by the parties thereto, and (2) the proceeds of such Incremental Term Loans shall be concurrently deposited into the Escrow Account until at least $75,000,000 (or such lesser amount equal to the entire amount of Incremental Term Loans incurred under clause (e) of the definition of Maximum Incremental Facilities Amount) from proceeds of (x) such Incremental Term Loans and/or (y) any sale of Equity Interests by, or capital contribution to, the Borrower (which, in the case of any such sale of Equity Interests, are not Disqualified Stock or Specified Equity Contributions) occurring after the Closing Date are on deposit in the Escrow Account.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other parties heretothan Other Term Loans), when originally made, are included in each Borrowing of outstanding Tranche A-1 Term Loans, Tranche A-2 Term Loans and/or Revolving Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) or (ii), as applicable, required to be made after the making of such Incremental Term Loans shall be ratably increased to take into account the initial aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.
(e) The Closing On any Increased Amount Date on which Incremental Revolving Loan Commitments shall be provided on the Closing Date as Incremental Revolving Commitmentsare effected, subject to the conditions set forth satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof, such interests in Section 5 the outstanding Revolving Loans and participations in Letters of Credit and Swing Line Loans outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit and Swing Line Loans being held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the same extent applicable addition of such Incremental Revolving Loan Commitments to the initial Revolving Credit Commitments, (ii) each Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to the Revolving Credit Commitments and without all matters relating thereto.
(f) The proceeds of any further amendment Incremental Loans shall be used for the purposes specified in the introductory statement to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Borrowers may on one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase occasions after the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicableEffective Date, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, request the establishment of Incremental Commitments; provided, except with respect to Indebtedness that constitutes Permitted Refinancing Indebtedness in respect of any Indebtedness secured pursuant to clause (B), (C) or (E) of the definition of Permitted Collateral Liens (it being understood that to the extent the refinanced Indebtedness consists of Junior Obligations, such Permitted Refinancing Indebtedness shall be Junior Obligations), that after giving pro forma effect thereto and the use of proceeds thereof, the Loan-to-Value Ratio does not exceed 25%. Each such notice shall specify (i) the amount of date on which the Lead Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such increase shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and the Facility or Facilities involved, (ii) the applicable amount of the Incremental Facility Closing Date, Commitments being requested (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for Lead Borrower proposes to become an Incremental Lender, if such Incremental Term Loans; providedPerson is not then a Lender, that:must be an Eligible Assignee).
(Ab) The terms and conditions of any Incremental Facility and the Incremental Advances to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the Initial2024 Repricing Commitments and Initial2024 Repricing Advances; provided that (i) the aggregate principal amount (or committed amountupfront fees, if applicable) of all Incremental Term Loans interest rates and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect amortization schedule applicable to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated Facility and Incremental Advances shall be determined by the Parent Lead Borrower as a “Limited Conditionality Acquisition”, no Default and the Incremental Lenders providing the relevant Incremental Commitments; provided that if the weighted average yield relating to any Incremental Advance established or Event incurred exceeds the weighted average yield relating to any Class of Default has occurred and is continuing as of Advances immediately prior to the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as effectiveness of the applicable Incremental Facility Activation DateAmendment by more than 0.50% (to be determined by the Administrative Agent consistent with generally accepted financial practices, immediately prior to and after giving effect to any Additional Credit Extension Amendment margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (including but only to the making extent that an increase in the interest rate floor applicable to such Class of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretoAdvances would result in an increase in an interest rate then in effect for such Class of Advances hereunder)), no Default or Event then the Applicable Margin relating to such Class of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower Advances shall be adjusted so that the weighted average yield relating to such Incremental Advances shall not exceed the weighted average yield relating to such Class of Advances by more than 0.50%; provided further that, the benefit of the foregoing proviso shall not apply with respect to (x) Incremental Advances that have a weighted average life to maturity and an Incremental Maturity Date, in complianceeach case, as that is 12 months or longer than the weighted average life to maturity of the Initial Advances and the 2024 Repricing Advances and (y) any Series of Incremental Advances (the “Declining Series”), with respect to the incurrence of other Incremental Advances if the applicable Incremental Facility Activation DateAmendment in respect of the Declining Series so provides, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, ii) except in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any an Incremental Facility that any representation effected as an increase to an existing Class of Advances or warranty of any Loan Party be true and correct in all material respectsas Permitted Refinancing Indebtedness, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ea) the weighted average life to maturity of any Incremental Term Facility Advances shall be no earlier shorter than the weighted average life to maturity of the Initial Term Facility Advances with the latest Maturity Date (except in calculated based on the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity of such Advances as of the date of funding thereof (giving effect to any amendments thereto)) and (b) no Incremental Maturity Date shall be earlier than the Initial Term Facility);
Latest Maturity Date with respect to any Advance, (Fiii) any Incremental Facility shall be secured only by all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect or a portion of the Collateral with securing the Term Loans Obligations and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a guaranteed only by the Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 Parties and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (iiv) to the extent such consent would be required for an assignment the terms and conditions of such Loans or any Incremental Facility and Incremental Advances are not identical to the terms and conditions of the Initial2024 Repricing Commitments and the Initial2024 Repricing Advances (except to the extent permitted pursuant to Section 10.6 clauses (such consent not to be unreasonably withheld, delayed or conditionedi) and (ii)), either (A) such terms and conditions shall be reasonably satisfactory to the Administrative Agent andor (B) to the extent such terms and conditions are more favorable to the Incremental Lenders than the terms and conditions of any then-existing Class of Commitments or Advances, this Agreement shall be amended in form and substance reasonably satisfactory to the Administrative Agent to apply such terms and conditions to each such Class of Commitments and Advances. Any Incremental Commitments established pursuant to an Incremental Facility Amendment that do not have identical terms and conditions, and any Incremental Advances made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Commitments and Incremental Advances for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Liens on the Collateral securing the other Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Borrowers, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default (or, in the case of any Incremental Revolving LoansAcquisition Facility, no Event of Default under Section 7.1.1 or 7.1.6) shall have occurred and be continuing on the Issuing Lenders date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the Swingline Lender and full amount of such Incremental Commitments shall have been funded as Advances on such date), (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by on the Administrative Agentdate of effectiveness thereof, on the representations and warranties of each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating Loan Party set forth in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower Documents (andor, in the case of Eurocurrency Loans or Term Benchmark Loansany Incremental Acquisition Facility, the Specified Representations and the Specified Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each Eurocurrency Tranche or Term Benchmark Tranchecase on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as applicableof such prior date, (iii) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on the Company shall make any payments required to be made pursuant to Section 3.4 in connection with such Incremental Facility Closing Date Commitments and the related transactions under this Section 2.14 and (iiiv) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant Company shall have delivered to the preceding sentence Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall equal reasonably be requested by the Eurocurrency Rate then applicable Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, provisions of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.14.
(d) Notwithstanding anything Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to the contrary be a “Lender” (and a Lender in this Agreement, each respect of Commitments and Advances of the parties hereto hereby agrees thatapplicable Class) hereunder, on each Incremental Facility Closing Date, this Agreement and henceforth shall be amended entitled to all the extent rights of, and benefits accruing to, Lenders (but only to the extent) necessary to reflect the existence or Lenders in respect of Commitments and terms Advances of the Incremental Term Loans applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Revolving Lenders in respect of Commitments evidenced thereby. Any such amendment may be effected in writing by and Advances of the Administrative Agent applicable Class) hereunder and the Parent Borrower and furnished to under the other parties heretoLoan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Amendment.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 5 to 2.14(a) and of the same extent applicable to effectiveness of any Incremental Commitments, in each case advising the initial Revolving Commitments and without any further amendment to this AgreementLenders of the details thereof.
Appears in 1 contract
Sources: Term Loan Agreement (Carnival PLC)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Borrowers may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall make, obtain one or increase more increases in the amount of their Incremental Term Loans or the Revolving Commitments of any Class (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Commitment Increase”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, (w) Commitments for the applicable U.S. Borrower; provided that the Dollar Equivalent of the aggregate amount of all the Incremental Revolving Commitment Increases and Incremental Term Maturity Date, (x) Commitments to be established hereunder on any datefollowing the amortization schedule for such Incremental Term Loans and (y) Amendment No. 1 Effective Date shall not exceed the Applicable Margin for such Incremental Term Loans; provided, that:
greater of (A) the aggregate principal amount (or committed amount, if applicable) Incremental Base Amount as of all Incremental Term Loans such date and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any assuming that the full amount of such Incremental Revolving Commitment Increases and/or Incremental Term Commitments, and all previously established Incremental Revolving Commitment Increases and Incremental Term Commitments then in effect, shall have been funded as Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”on such date, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisitionan additional aggregate amount, merger or similar agreement governing such acquisition or (y) otherwisethat, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect Pro Forma Effect to any Additional Credit Extension Amendment (including the making establishment of any Incremental Revolving Commitment Increases and/or Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)and the use of proceeds thereof, no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower Borrowers shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1Pro Forma Compliance, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower Test Period for which financial statements are available;
have been delivered pursuant to Section 5.01(a) or 5.01(b) (Dor, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements), with a Senior Secured Leverage Ratio that is no greater than 2.50:1.00. Each such notice shall specify (A) in no event the date on which the applicable Borrower proposes that the Incremental Revolving Commitment Increases or the Incremental Term Commitments, as applicable, shall it be effective, which shall be a condition date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the effectiveness ofAdministrative Agent and (B) the amount of the Incremental Revolving Commitment Increase or Incremental Term Commitments, or Borrowing underas applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Facility that any representation Revolving Commitment Increase or warranty of any Loan Party be true and correct Incremental Term Commitment may elect or decline, in all material respectsits sole discretion, except and solely to the extent required by the lenders providing provide such Incremental Facility;
Revolving Commitment Increase or Incremental Term Commitments, (Ey) the weighted average life Borrowers shall not be required to maturity approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the applicable Borrower proposes to become a Lender under any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment Commitment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Commitment Increase, if such Person that is not then a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Lender, all terms of any Incremental Term Facilitymust be an Eligible Assignee and, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent Agent would be required for an assignment of such Loans or Commitments pursuant Commitment to Section 10.6 (such consent not to be unreasonably withheldLender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansCommitment Increase, the if any consent of each Issuing Lenders Bank and the Swingline Lender would be required for an assignment of Revolving Loans or a Revolving Commitment to such Lender, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that any interest margins, commitment fees, pricing and rate floors applicable to any Incremental Revolving Commitment Increase may exceed the interest margins, commitment fees, pricing and rate floors payable with respect to the Revolving Loans and/or Revolving Commitments pursuant to the terms of this Agreement, as amended through the date of such calculation, in which case the Applicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case as in effect for the other Revolving Loans and Revolving Commitments, shall be automatically increased to eliminate such excess (it being understood that additional upfront or similar fees may be payable to the Lenders participating in such Incremental Revolving Commitment Increase without any requirement to pay such amounts to any existing Revolving Lenders). The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be set forth in the applicable Incremental Facility Agreement and shall be identical to those of the Term Commitments and the Term Loans (other than with respect to maturity, amortization, prepayment, fees and pricing, which shall be, subject to the following proviso, determined by the applicable Borrowers and the Lenders thereunder as set forth in documentation to be determined by the Borrowers and reasonably satisfactory to the Administrative Agent); provided that (A) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the longest remaining Weighted Average Life to Maturity of any Class of Term Loans then outstanding, (B) no Incremental Term Loan Maturity Date shall be earlier than the latest Maturity Date then in effect, (C) any Incremental Term Loans may participate in any mandatory prepayment under Sections 2.11(c) and (iie) on a pro rata basis (or on less than pro rata basis), but not on a greater than pro rata basis with the other Term Loans, (D) any Incremental Term Loan shall become a Lender under rank pari passu in right of payment and of security with the Initial Term Loans and shall be secured only by the Collateral securing the Obligations, (E) any Incremental Term Loan shall be denominated in Dollars and (F) any Previously Absent Financial Maintenance Covenant shall be permitted so long as the Administrative Agent shall be given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of all Lenders. Any Incremental Term Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, may be (x) designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement or (y) effected as an increase to an existing Class of Term Loans.
(c) Unless otherwise agreed The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the applicable 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 Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments or Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such date;
(ii) 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, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that in the case of any Incremental Term Loans or Incremental Revolving Commitment Increase used to finance an acquisition permitted hereunder and whose consummation is not conditioned upon the availability of, or on obtaining, third party financing, to the extent the Lenders participating in such Incremental Term Loans or Incremental Revolving Commitment Increase agree, this clause (ii) shall require only customary “specified representations” and “acquisition agreement representations” requested by the applicable Incremental Lenders;
(iii) after giving Pro Forma Effect to the establishment of any Incremental Revolving Commitment Increase or Incremental Term Commitment, the incurrence of any Loans thereunder and the use of the proceeds thereof, and assuming that the full amount of such Incremental Revolving Commitment Increases and/or Incremental Term Commitments shall have been funded as Loans on such date, the Borrowers shall be in Pro Forma Compliance with each Financial Maintenance Covenant, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements);
(iv) the applicable Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Term Commitments or Incremental Revolving Commitment Increase and the related transactions under this Section. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, on each to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Term Commitment or Incremental Revolving Commitment Increase of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment Increase, (A) if the applicable Lender does not already have a Revolving Commitment, such Incremental Revolving Commitment Increase shall constitute the Revolving Commitment of such Lender as provided in the Incremental Facility Closing Date Agreement applicable to such Incremental Revolving Commitment Increase, (B) if the applicable Lender already has a Revolving Commitment, the Revolving Commitment of such Lender shall be increased as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase and (C) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment Increase, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment Increase, the Revolving Exposure of the Revolving Lender making such Incremental Revolving Commitment Increase, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitment Increase, each Revolving Lender shall assign to each Revolving Lender making such Incremental Revolving Commitment Increase, and each such Revolving Lender making such Incremental Revolving Commitment Increase shall purchase from each Revolving Lender, at the principal amount thereof (together with respect accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving FacilityCommitment Increase.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the applicable Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the applicable Borrower referred to in Section 2.21(a) and of the amount effectiveness of any Incremental Term Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitment Increase, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall makeafter the Closing Date, obtain add one or more tranches of term loans or increase the amount an outstanding tranche of their term loans (each an “Incremental Term Loans or Facility”), and/or increase the Aggregate Revolving Commitments (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Increase”); each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Borrower, as applicable, by executing and delivering to the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an Additional Credit Extension Amendment specifying “Incremental Facility Amendment”); provided that:
(i) the principal amount of such increase and Incremental Facility shall not exceed the greater of:
(A) $250,000,000 minus the aggregate initial principal amount of all previously incurred Incremental Facilities; and
(B) the maximum amount that, after giving effect to such Incremental Facility or Facilities involvedon a Pro Forma Basis, would not cause the Consolidated Senior Secured Leverage Ratio to exceed 3.00:1.00 assuming the full amount of such Incremental Facility is fully drawn.
(ii) no Default shall have occurred and be continuing, and no Default would exist after giving effect to any Incremental Facility, both on the applicable date on which such Incremental Facility Closing Date, is requested and on the date on which such Incremental Facility is to become effective;
(iii) each Incremental Facility shall be in a minimum amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the applicable Borrower(s) and Administrative Agent may agree);
(iv) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(v) [reserved];
(vi) each Incremental Facility shall be effective only upon receipt by the case Administrative Agent of (A) additional commitments in respect of such requested Incremental Term Loans, Facility (weach an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (B) documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent;
(vii) the applicable Administrative Agent shall have received:
(A) a certificate of the Borrower dated as of the effective date of such Incremental Term Maturity DateFacility signed by a Responsible Officer of the Borrower (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of the Borrower approving such Incremental Facility (which may be the same resolutions as those delivered pursuant to Section 4.01(c)(ii), if such resolutions are deemed appropriate by the Administrative Agent for purposes of approving the Incremental Facility and authorizing the necessary actions incident thereto), and (2) certifying that, before and after giving effect to such Incremental Facility, (x) the amortization schedule for representations and warranties contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) on and as of the date of such Incremental Term Loans Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) as of such earlier date, and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Capno Default exists;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and Pro Forma Compliance Certificate demonstrating that after giving effect to any Additional Credit Extension Amendment (including the making incurrence of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any such Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments Increase, that the entire amount of such commitments are fully drawnIncremental Revolving Increase is funded) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), Borrower is in compliance with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available7.11 on a Pro Forma Basis;
(DC) in no event shall it be a condition such amendments to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely Collateral Documents as the Administrative Agent reasonably requests to cause the extent required by Collateral Documents to secure the lenders providing Obligations after giving effect to such Incremental Facility;
(D) to the extent requested by the Administrative Agent, customary opinions of legal counsel to the Borrower, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility; and
(E) such other documents and certificates it may reasonably request relating to the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders necessary authority for such Incremental Term Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent; provided that each ;
(viii) in the case of an Incremental Term Facility shall share ratably in any mandatory prepayments of Revolving Increase:
(A) the applicable Term Facility unless the Parent Borrower terms and the lenders in respect conditions (including interest rate, interest rate margins, fees (other than arrangement, structuring, underwriting and similar fees not paid generally to all Lenders under such Incremental Revolving Increase), prepayment terms and final maturity) of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof Increase shall be pursuant to the same as the terms hereof otherwise applicable to the Aggregate Revolving Facility and Commitments hereunder; and
(B) on the effective date of such Incremental Revolving Increase, the existing Lenders with Revolving Commitments shall become make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Commitments under this Agreement Loans and participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Additional Incremental Revolving Increase and such assignments and adjustments, each Lender (including the Lenders providing such Incremental Revolving Increase) will hold its pro rata share (based on its Applicable Percentage of the increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit Extension Amendmentand Swing Line Loans;
(Iix) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any an Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Term Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and shall have determined in its discretion in consultation with the Parent Borrower and furnished to the other parties hereto.
whether such Incremental Term Facility is a tranche A term loan (ean “Incremental Tranche A Term Facility”) The Closing Date or a tranche B term loan (an “Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.Tranche B Term Facility”);
Appears in 1 contract
Sources: Credit Agreement (Compass Group Diversified Holdings LLC)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time on or after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing aggregate Revolving Commitments (each such increase, a “Revolving Facility Increase”) and/or (B) an increase to the size of the existing Term Loan Facility and/or the establishment of one or more incremental term loan facilities to the Term Loan Facility (whether or not a separate tranche, an “Incremental Term Loan”; each Incremental Term Loan is referred to individually as an “Incremental Term Facility” and together with any Revolving Facility Increase, collectively referred to as “Incremental Facilities”, and any such increased Revolving Commitmentsfacility or commitment increase, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableindividually, an “Incremental Facility”)) such that the aggregate amount of the Facilities, together with all such Incremental Facilities, does not exceed at any time $4,000,000,000. Each such notice shall specify the date on which the Borrower proposes that such Incremental Facilities shall be effective, which shall be a date not less than five (5) Business Days (or such lesser number of days as applicable, by executing and delivering the Administrative Agent shall agree) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying (i) Agent. The Administrative Agent, the amount Syndication Agents and/or their respective Affiliates shall use commercially reasonable efforts, with the assistance of such increase and the Facility Borrower, to arrange a syndicate of Lenders or Facilities involved, (ii) other Persons that are Eligible Assignees willing to hold the applicable requested Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, Facility; provided that (x) the amortization schedule for such any Lender approached to provide all or a portion of any Incremental Term Loans Facility may elect or decline, in its sole discretion, to participate in an Incremental Facility, and (y) the Applicable Margin for any Lender or other Person that is an Eligible Assignee to whom any portion of such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than allocated (each, an “Incremental Revolving Lender” or “Incremental Term Loan Lender”, as applicable) shall be subject to the weighted average life to maturity approval of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 Agent (such consent approval not to be unreasonably withheld, delayed withheld or conditioneddelayed), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental a Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving FacilityIncrease, each Borrower Issuing Bank (which approvals shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (andnot be unreasonably withheld), in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing required by the Administrative Agent and the Parent Borrower and furnished to the other parties heretoSection 9.04(b).
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Invitation Homes Inc.)
Incremental Facilities. The Borrowers may at any time and from time to time following the SecondSixth Amendment Effective Date, upon prior written notice by the applicable Borrower to the Administrative Agent, increase the Aggregate Revolving A Commitments (but not the Letter of Credit Sublimit, the Swing Line Sublimit or the Foreign Borrower Sublimit (except as otherwise set forth in the definition therein)) and/or the Aggregate Revolving B Commitments and/or establish one or more Incremental Term Loans, by a maximum aggregate amount not to exceed the Incremental Amount, as follows (in each case, subject to Section 1.02(d)):
(a) The Parent Borrower and/or Borrowers may at any Additional Borrower time and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall maketime, obtain or upon prior written notice by the applicable Borrower to the Administrative Agent, increase the Aggregate Revolving A Commitments (but not the Letter of Credit Sublimit, the Swing Line Sublimit or the Foreign Borrower Sublimit (except as otherwise set forth in the definition therein)) with additional Revolving A Commitments from any existing Revolving A Lender or new Revolving A Commitments from any other Person selected by the Company and reasonably acceptable to the Administrative Agent, the L/C Issuer and the Swing Line Lender; provided that:
(i) any such increase shall be in a minimum principal amount of their Incremental Term Loans or Revolving Commitments $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Event of Default shall exist and be continuing at the time of any such increased increase;
(iii) no existing Revolving Commitments, “Incremental A Lender shall be under any obligation to increase its Revolving Commitments” A Commitment and any facility under which such Incremental Term Loans or Incremental decision whether to increase its Revolving Commitments are made available, an “Incremental Facility”), as applicable, A Commitment shall be in such Revolving A Lender’s sole and absolute discretion;
(1) any new Revolving A Lender shall join this Agreement by executing and delivering such joinder documents required by the Administrative Agent and/or (2) any existing Revolving A Lender electing to increase its Revolving A Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as a condition precedent to such increase, (1) the applicable Borrower shall deliver to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) a certificate of each Credit Party that has guaranteed the amortization schedule for Obligations of such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing dated as of the date of entry into such increase signed by an Authorized Officer of such Credit Party certifying and attaching the applicable acquisition, merger resolutions adopted by such Credit Party approving or similar agreement governing consenting to such acquisition or increase and (y) otherwise, as a certificate of the applicable Incremental Facility Activation DateCompany signed by an Authorized Officer of the Company certifying that, immediately prior to (A) before and after giving effect to any Additional Credit Extension Amendment such increase, (including I) the making representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of any Incremental Term Loans the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, if qualified by materiality or Incremental Revolving Commitments pursuant thereto)reference to Material Adverse Effect, in all respects) as of such earlier date and (II) no Default or Event of Default has occurred exists and is continuing or shall result therefrom;
(CB) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including immediately after giving pro forma effect to the applicable Additional Credit Extension Amendment increase of the Aggregate Revolving A Commitments (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments assuming for such calculation that such commitments are increase is fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), the Company would be in compliance with the financial covenants set forth in Section 7.1, 7.08 and 7.09 recomputed as of the last day end of the period of twelve months most recently ended fiscal quarter of the Parent Borrower for which the Company has delivered financial statements are available;
pursuant to Section 6.01(a) or (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
b); (E2) the weighted average life to maturity of any Incremental Term Facility Company shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory deliver to the Administrative Agent; provided that Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Incremental Term Facility shall share ratably in any mandatory prepayments Lender, dated as of the applicable Term Facility unless the Parent Borrower and the lenders in respect effect date of such Incremental Term Facility elect lesser payments;
increase; and (H3) any Incremental Revolving Commitments and the Revolving Loans in respect thereof Company shall be pursuant deliver to the terms hereof otherwise applicable Administrative Agent such amendments to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of Collateral Documents as the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be Agent may deem necessary in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Dateconnection with such increase; and
(Jvi) no Lender Schedule 2.01 shall have any obligation be deemed revised to participate in include any increase described in the Aggregate Revolving A Commitments pursuant to this paragraph unless it agrees Section 2.18(a) and to do so in its sole discretion.
include thereon any Person that becomes a Lender pursuant to this Section 2.18(a). The Borrowers shall prepay any Revolving A Loans owing by them and outstanding on the date of any such increase (b) Any New Lender that elects and pay any additional amounts required pursuant to provide Commitments under an Incremental Facility (iSection 3.05) to the extent such consent would be required for an assignment of such necessary to keep the outstanding Revolving A Loans or ratable with any revised Revolving A Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, arising from any non-ratable increase in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender A Commitments under this Agreement pursuant to an Additional Credit Extension AmendmentSection.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (EnerSys)
Incremental Facilities. (a) The Parent Upon written notice to the Administrative Agent (which shall promptly notify the Lenders), at any time after the Closing Date, the Borrower and/or any Additional Borrower and any may request (i) one or more Lenders additional tranches of term loans or increases in any then-existing Term Facility (each an “Incremental Term Commitment” and all of them, collectively, the “Incremental Term Commitments”) and (ii) one or more additional tranches of revolving commitments or increases in the aggregate amount of any Class of Revolving Credit Commitments, including increases in the Letter of Credit Sublimit to the extent consented to by each affected L/C Issuer (each an “Incremental Revolving Credit Commitment” and all of them, collectively, the “Incremental Revolving Credit Commitments” and, together with the Incremental Term Commitments, the “Incremental Commitments”); provided that no Lender shall be required to participate in any Incremental Facility; provided, further, that after giving effect to any such addition, the aggregate principal amount of Incremental Commitments that have been added pursuant to this Section 2.14 shall not exceed the sum of:
(b) (w) (i) the sum of the Fixed Dollar Amount, plus (ii) the General Debt Basket Amount, minus the aggregate principal amount of all Permitted Other Indebtedness incurred under clause (w) of the definition thereof, plus
(c) (x) in the case of any Incremental Facility that serves to effectively extend the maturity or effect the repricing of any Term Facility, any Revolving Credit Facility, any Incremental Facility, any other facilities under this Agreement, any Permitted Other Indebtedness or any Specified Refinancing Indebtedness (collectively, “Specified Indebtedness”), an amount equal to the portion of any such facility that will be replaced by such Incremental Facility plus any related fees, costs and expenses (including New Lendersoriginal issue discount and upfront fees and prepayment penalties and premium), provided that if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien securing the Initial Facilities or is unsecured, such Incremental Facility shall be secured by a Lien on the Collateral that is junior to the Lien securing the Initial Facilities or unsecured, as applicable (in each case, without duplication of any utilization of clause (x) of the definition of “Permitted Other Indebtedness” in respect of such Indebtedness being so extended), plus
(d) (y) without duplication, the aggregate principal amount of all voluntary terminations of any portion of the Revolving Credit Commitments pursuant to Section 2.06(a) and all voluntary prepayments and debt buybacks (which shall include, for the avoidance of doubt, any redemption, open market purchase and consummated offer to purchase including pursuant to any “yank-a-bank” provision) of Term Loans pursuant to Sections 2.05(a)(i) and (iv) and Section 10.07(i) (to the extent made by the Borrower or any of its Restricted Subsidiaries) and prepayments of other Specified Indebtedness, (i) with respect to Incremental Facilities that are secured by a Lien on any or all of the Collateral that is pari passu with the Lien securing the Initial Facilities, of any class of Specified Indebtedness secured by a Lien on any or all of the Collateral that is pari passu with the Lien securing the Initial Facilities, (ii) with respect to Incremental Facilities that are secured by a Lien on any or all of the Collateral that is junior to the Lien securing the Initial Facilities, of any class of Specified Indebtedness secured by a Lien on any or all of the Collateral that is pari passu with or junior to the Lien securing the Initial Facilities and (iii) with respect to Incremental Facilities that are unsecured, of any class of Specified Indebtedness secured by a lien on any or all of the Collateral that is pari passu with or junior to the lien securing the Initial Facilities or is unsecured, in each case (x) made at or prior to such time (in each case, other than prepayments funded with the proceeds of long-term Indebtedness (excluding any revolving facility)), (y) based on the par amount thereof, and (z) in the case of any revolving and delayed draw facilities, with a corresponding reduction of commitments thereunder, minus the aggregate principal amount of all Permitted Other Indebtedness incurred under clause (y) of the definition thereof; provided that any such utilization of this clause (y) in respect of Indebtedness under a Fixed Amount Basket shall be deemed to utilize such Fixed Amount Basket, plus
(e) (z) such additional amount so long as, after giving effect on a Pro Forma Basis to the incurrence thereof (assuming for such purposes that the entire amount of any such Incremental Commitments were fully funded),
(i) in the case of any Incremental Facility secured by a Lien on any or all of the Collateral that is pari passu with the Liens securing the Initial Facilities, the First Lien Net Leverage Ratio (without netting the cash and Cash Equivalents constituting proceeds of such Incremental Facility) as of the last day of the most recently ended Test Period would not as of the date of determination exceed either (A) the Applicable Leverage Ratio or (B) if such Incremental Facility is incurred to finance a Permitted Acquisition or similar permitted Investment, the First Lien Net Leverage Ratio immediately preceding the incurrence of such Incremental Facility and the consummation of such Permitted Acquisition or other permitted similar Investment,
(ii) in the case of any Incremental Facility secured by a Lien on any or all of the Collateral that is junior to the Liens securing the Initial Facilities, either (I) the Secured Net Leverage Ratio (without netting the cash and Cash Equivalents constituting proceeds of such Incremental Facility) as of the last day of the most recently ended Test Period would not as of the date of determination exceed either (A) the Applicable Leverage Ratio or (B) if such Incremental Facility is incurred to finance a Permitted Acquisition or other similar Investment, the Secured Net Leverage Ratio immediately preceding the incurrence of such Incremental Facility and the consummation of such Permitted Acquisition or other similar Investment or (II) the Cash Interest Coverage Ratio as of the last day of the most recently ended Test Period would not as of the date of determination be less than either (A) 2.00:1.00 or (B) if such Incremental Facility is incurred to finance a Permitted Acquisition or other similar Investment, the Cash Interest Coverage Ratio immediately preceding the incurrence of such Incremental Facility and the consummation of such Permitted Acquisition or other permitted similar Investment, and
(iii) in the case of any Incremental Facility that is unsecured or secured by assets not constituting Collateral, either (I) the Total Net Leverage Ratio (without netting the cash and Cash Equivalents constituting proceeds of such Incremental Facility) as of the last day of the most recently ended Test Period would not as of the date of determination exceed either (A) the Applicable Leverage Ratio or (B) if such Incremental Facility is incurred to finance a Permitted Acquisition or other similar Investment, the Total Net Leverage Ratio immediately preceding the incurrence of such Incremental Facility and the consummation of such Permitted Acquisition or other similar Investment or (II) the Cash Interest Coverage Ratio as of the last day of the most recently ended Test Period would not as of the date of determination be less than either (A) 2.00:1.00 or (B) if such Incremental Facility is incurred to finance a Permitted Acquisition or other similar Investment, the Cash Interest Coverage Ratio immediately preceding the incurrence of such Incremental Facility and the consummation of such Permitted Acquisition or other permitted similar Investment;
(f) and in each case any such addition shall be in an aggregate amount of not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(g) The Borrower may from (I) incur Incremental Commitments under clause (w)(i), (w)(ii), (x), (y) or (z) of the second proviso of the immediately preceding sentence in such order as it may elect in its sole discretion and shall be allowed to classify under which clause such Incremental Commitments are being incurred at the time of such incurrence, without giving Pro Forma Effect to time agree any Incremental Facilities or any increases of the Term Facility (or any portion thereof) in each case permitted to be incurred under clauses (w)(i), (w)(ii), (x) and (y) of the second proviso of the immediately preceding sentence (together with any amounts incurred to fund original issue discount and upfront fees) that such Lenders shall make, obtain or increase is being incurred concurrently with an incurrence under clause (z) of the second proviso of the immediately preceding sentence when calculating the amount of their Incremental Commitments (or any portion thereof) that may be incurred pursuant to such clause (z) at such time and (II) later reclassify Indebtedness incurred under clause (w)(i), (w)(ii), (x) or (y) of the second proviso of the immediately preceding sentence as incurred pursuant to clause (z) of the second proviso of the immediately preceding sentence, if at the time of such reclassification, the Borrower would have been permitted to incur such Indebtedness under such clause (z). Any loans made in respect of any such Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, the “Incremental Revolving CommitmentsTerm Loans” and any such facility under an “Incremental Term Loan Facility”) may be made, at the option of the Borrower, by either (i) increasing a given Class of Term Commitments with the same terms (including pricing) as the existing Term Loans of such Class, in which case such Incremental Term Loans shall constitute Term Loans of such Class for all purposes hereunder and under the other Loan Documents or Incremental Revolving Commitments are made available, (ii) creating a new tranche of term loans (an “Incremental FacilityTerm Loan Tranche”). Any loans made in respect of any such Incremental Revolving Credit Commitments (the “Incremental Revolving Credit Loans” and any such facility an “Incremental Revolving Credit Facility” and, together with any Incremental Term Loan Facility, the “Incremental Facilities”) may be made, at the option of the Borrower, by either (i) increasing a given Class of Revolving Credit Commitments with the same terms (including pricing) as the existing Revolving Credit Commitments of such Class, in which case such Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall constitute Revolving Credit Commitments and Revolving Credit Loans of such Class for all purposes hereunder and under the other Loan Documents or (ii) creating a new tranche of revolving credit commitments (an “Incremental Revolving Credit Tranche”). The proceeds of the Incremental Facilities may be used for working capital, capital expenditures and other general corporate purposes (including any actions permitted by Article VII, including permitted Restricted Payments) of the Borrower and its Restricted Subsidiaries.
(h) The Incremental Term Loans comprising each Incremental Term Loan Tranche and the Incremental Revolving Credit Commitments comprising each Incremental Revolving Credit Tranche, as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying :
(i) other than customary “bridge” facilities which by their terms will be converted into a facility that has, or extended such that they have, a maturity no earlier than the Latest Maturity Date of all Classes of Commitments and Loans then in effect and Indebtedness in an aggregate principal amount not in excess of such increase the Inside Maturity Basket, in the case of Incremental Term Loans, shall have a maturity date that is not prior to the Latest Maturity Date of all Classes of Term Loans then in effect and the Facility or Facilities involved, shall have a Weighted Average Life to Maturity that is not shorter than that of any Class of Term Loans;
(ii) other than Indebtedness in an aggregate principal amount not in excess of the applicable Inside Maturity Basket, in the case of Incremental Facility Closing DateRevolving Credit Commitments and Incremental Revolving Credit Loans, shall have a maturity date that is not prior to the Latest Maturity Date of all Classes of Revolving Credit Commitments then in effect and shall not require any scheduled commitment reduction;
(iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) may share ratably, more than ratably or less than ratably in any voluntary prepayments of the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans Facility and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) shall share ratably (x) and may not share more than ratably, except with respect to (i) any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior incurred pursuant to the Inside Maturity Basket and after giving effect to any Additional Credit Extension Amendment (including the making ii) prepayments of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any such Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(DSpecified Refinancing Debt) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity mandatory prepayments of the Initial Term Facility (except in unless the case of customary high-yield bridge loans which, subject Incremental Lenders with respect to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required such Incremental Term Loans agree to be exchanged for permanent Indebtedness that does not have receive prepayments on a shorter weighted average life to maturity less than the Initial Term Facilitypro rata basis);
(Fiv) all Incremental Term Loans and may be denominated in Dollars, or any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect Alternative Currency reasonably acceptable to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower Incremental Lenders and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andthat, in the case of any Incremental Revolving LoansCredit Tranche denominated in an Alternative Currency, the Issuing Lenders Revolving Credit Commitments and the Swingline Lender Revolving Credit Loans thereunder shall constitute a separate Class from any Class of Revolving Credit Commitments and Revolving Credit Loans denominated in a different currency, and each Borrowing and payment of Revolving Credit Loans denominated in an Alternative Currency (ii) shall become a Lender under this Agreement other than pursuant to an Additional Section 2.07(d) or as a result of the voluntary reduction of Revolving Credit Extension Amendment.Commitments on a non-pro rata basis as between different Revolving Credit Facilities) will be made on a pro rata basis among all Classes of Revolving Credit Commitments denominated in that same Alternative Currency;
(cv) Unless otherwise agreed by in the Administrative Agentcase of any Incremental Facility, on each Incremental Facility Closing Date except as set forth in Section 2.14(a) and this Section 2.14(b) with respect to prepayment events, maturity date, interest rate, yield, fees and original issue discounts and except with respect to the Revolving amortization schedule for the Incremental Term Loans and the permitted use of proceeds of any Incremental Facility, each Borrower when taken as a whole shall borrow Revolving Loans under (A) be substantially identical to, or no more favorable (taken as a whole) to the relevant increased Revolving Commitments from each Lender participating lenders providing such Incremental Facility than, those contained in the relevant increase in an amount Initial Term Loan Facility or Extended Revolving Credit Facility, as applicable, (B) reflect market terms and conditions (as determined by reference the Borrower in good faith) at the time of incurrence or issuance (or obtaining of a commitment with respect thereto) or (C) be reasonably satisfactory to the amount Administrative Agent (in each case, except for any terms which are beneficial to the Incremental Lenders that are either (1) also added for the benefit of each Type of Loan of such Borrower the existing Lenders (andor, in the case of Eurocurrency any financial covenant applicable to any Incremental Revolving Credit Facility, that are made for the benefit of the Lenders under the then-existing Revolving Credit Facilities) or (2) only applicable to periods after the Latest Maturity Date of the Initial Term Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranchethen-existing Revolving Credit Facilities, as applicable) which would then have been outstanding from such Lender if (i) each such Type); provided that, Eurocurrency Tranche or in the case of Incremental Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, if the initial Yield on any Incremental Term Loan Tranche (other than any Incremental Term Loan Tranche that (A) does not constitute “broadly syndicated Term B” loans (as applicable, of the other Lenders such terms are commonly understood in the same Eurocurrency Tranche or Term Benchmark Tranchemarket), as applicable (or, until B) is obtained after the expiration of date that is six (6) months after the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended (C) is in aggregate principal amount equal to or less than the extent greater of $63,500,000 and (but only to the extenty) necessary to reflect the existence and terms 50.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period, (D) has a maturity date later than twelve (12) months after the Maturity Date of the Initial Term Loans, (E) is incurred to finance a Permitted Acquisition or other permitted similar Investment, (F) is not secured on a pari passu basis with the Facilities or (G) is originally incurred pursuant to clause (z) of Section 2.14(a)) exceeds by more than one hundred (100) basis points (the amount of such excess above one hundred (100) basis points being herein referred to as the “Incremental Yield Differential”) the Yield then in effect for any outstanding Initial Term Loans, then the Applicable Rate then in effect for such outstanding Initial Term Loans or Revolving Commitments evidenced thereby. Any such amendment may shall automatically be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.increased
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Commitment Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Loan Commitments, an “provided that the aggregate amount of all the Incremental Facility”)Commitments established at any time shall not exceed the Permitted Incremental Amount at such time. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoan Commitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Loan Commitment and (y) any Person that the Applicable Margin for such Borrower proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans such Person is not then a Lender, must be an Eligible Assignee and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall must be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect reasonably acceptable to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment with respect to proposed Incremental Revolving Lender, each Issuing Bank).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans, it being agreed, however, that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made in connection with the proceeds thereof))effectiveness of any Incremental Revolving Commitment, with subject to the financial covenants consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Margin and fees payable for the account of the Revolving Lenders pursuant Section 2.10, so long as such increase is effective for the benefit of all the Revolving Lenders hereunder on equal terms. The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in Section 7.1the applicable Incremental Facility Agreement, recomputed as identical to those of the last day of Tranche B Term Loan Commitments and the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
Tranche B Term Loans; provided that (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ei) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Tranche B Terms Loans and (ii) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Tranche B Term Facility);Loan Maturity Date.
(Fc) all The Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment be effected pursuant to one or more Incremental Facility Agreements executed and right of security in respect of delivered by Holdings, the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Borrower, all terms of any each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Incremental Commitments and the making of Loans and other Credit Extension Amendment;
Extensions thereunder to be made on such date, (Iii) on the date of effectiveness thereof, the representations and warranties of each Credit Party set forth in the Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to such Incremental Commitments and the making of Loans and other Credit Extensions thereunder to be made on the date of effectiveness thereof Holdings and the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.7 (determined in accordance with Section 1.2(b)) as of the last day of the Fiscal Quarter most recently ended on or prior to such date for which financial statements are available (provided that, for purposes of determining the Leverage Ratio under Section 6.7(b), the Consolidated Total Debt shall be determined on a pro forma basis as of such date), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.17(c) in connection with such Incremental Commitments and the related transactions under this Section 2.23 and (v) Holdings and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.23 (x) each including any increase effected referred to in Section 2.23(b)). Any Incremental Term Loan Commitments established pursuant to this paragraph an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be in designated as a minimum amount separate series (each, a “Series”) of at least $50,000,000 Incremental Term Loan Commitments and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in Term Loans for all purposes of this paragraph unless it agrees to do so in its sole discretionAgreement.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the aggregate amount of the Revolving Commitments shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Commitment, and the Pro Rata Shares of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Pro Rata Shares after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) On the date of effectiveness of Incremental Term Loan Commitments of any Series, subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of such Series shall make a loan to the Borrower in an amount equal to such Lender’s Incremental Term Loan Commitment of such Series.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Pro Rata Shares of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.23(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent At any time following the Seventh Amendment Effective Date, the Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time may, by written notice to time agree that such Lenders shall makethe Administrative Agent, obtain or elect to request an increase to the amount of their Incremental Term Loans or Revolving Facility Commitments (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityCommitment”), as applicablein effect on the Seventh Amendment Effective Date, by executing 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 that is an integral multiple of the Borrowing Multiple and delivering not less than U.S.$10.0 million (the “Incremental Loans”). Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be made available, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent). The Borrower shall notify the Administrative Agent in writing of the identity of each Lender or other financial institution (which in any event shall not be the Borrower or an Additional Credit Extension Amendment specifying Affiliate of the Borrower) reasonably acceptable to the Administrative Agent and the Issuing Banks (each, an “Incremental Revolving Facility Lender” or an “Incremental Lender”) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that 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. Such Incremental Commitments shall become effective as of such Increased Amount Date, provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment such Incremental Commitments; (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Cii) the Parent Borrower representations and warranties contained in Article III and the other Loan Documents shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respectsrespects on and as of the Increased Amount Date, except and solely to the extent required by the lenders providing that such Incremental Facility;
representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (Eiii) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto Loans; (iv) such Incremental Commitments shall be a Person that is not a Loan Party;
(G) except with respect evidenced by one or more joinder agreements executed and delivered to pricing Administrative Agent by each Incremental Lender, as applicable, and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, each shall be determined between recorded in the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that register, each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), which shall be reasonably satisfactory to the Administrative Agent and, and subject to the requirements set forth in Section 2.17(e); (v) the case Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Revolving Commitments or any Incremental Loans; (vii) any Incremental Loans shall be treated substantially the same as the existing Loans (in each case, including with respect to mandatory and voluntary prepayments); (viii) if the Issuing Lenders and the Swingline Lender and all-in yield (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed as reasonably determined by the Administrative Agent, on each Incremental Facility Closing Date with respect Agent and the Borrower to be equal to the Revolving Facilitysum of (A) the margin above the Eurodollar Rate on such Incremental Loans, each (B) 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 shall borrow Revolving Loans under or any Subsidiary for doing so but excluding any arrangement fees not paid to the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to Lenders thereof generally (the amount of each Type such discount or fee, expressed as a percentage of Loan the Incremental Loans, being referred to herein as “OID”), the amount of such Borrower OID (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicablebased on an assumed four year weighted average life) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (iiC) the aggregate amount of each such Type, Eurocurrency Tranche any minimum Alternate Base Rate or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Adjusted Eurodollar Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate such Incremental Loans) (the “All-In Yield”) for any Term Benchmark Loan, as applicable, borrowed pursuant to Incremental Loan exceeds the preceding sentence shall equal the Eurocurrency Rate then applicable to All-In Yield for the Eurocurrency Revolving Facility Loans or Adjusted Term SOFR Rate by more than 50 basis points (the excess of (A) such All-In Yield for Term Benchmark the Incremental Loans over (B) the All-In Yield for the Revolving Facility Loans, as applicableplus 50 basis points being the relevant “Margin Differential”), then each Applicable Margin for the Revolving Facility Loans, for each adversely affected existing Revolving Facility shall automatically be increased by the Margin Differential effective upon the making of the other Lenders Incremental Loan; and (ix) except as otherwise provided in this clause (a), the same Eurocurrency Tranche or Term Benchmark Tranche, as terms and conditions applicable (or, until the expiration to Incremental Loans shall not be materially different from those of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each Revolving Facility Loans. Each of the parties hereto hereby agrees that, on each upon the effectiveness of any joinder agreements in connection with any Incremental Facility Closing DateCommitments 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 or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by , and the Administrative Agent and the Parent Borrower and furnished may revise this Agreement to evidence such amendments without the other parties hereto.
(e) The Closing Date consent of any Lender. Notwithstanding the foregoing, the Borrower hereby agrees that the availability of Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth prior satisfaction of the following conditions: (x) each Loan Party shall have obtained all material consents necessary in Section 5 connection with such Incremental Commitments and the transactions contemplated by any amendments to the same extent Loan Documents entered into in connection therewith; 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 initial Revolving Administrative Agent and covering such matters relating to the Incremental Commitments and without any further amendment the Incremental Loans as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to this Agreementdeliver such opinions.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain one or more additional tranches of term loans or increase the amount of their Incremental Term Loans (which may be effected by increasing the amount of any then existing Facility of Term Loans) (any such Term Loans or additional tranche of term loans each, an “Incremental Term Facility”) or increase the aggregate amount of the Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental Revolving Facility”, together with any Incremental Term Facilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Incremental Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities Facilitates involved, (ii) the applicable Incremental Facility Closing Date, Date (iiiwhich shall be a date not less than ten (10) Business Days after the applicable Borrower(sdate on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)) and (iviii) in the case of Incremental Term Loans, (wx) the applicable Incremental Term Loan Maturity Date, (xy) the amortization schedule for such Incremental Term Loans and (yz) the Applicable Margin for such Incremental Term Loans; provided, that:
that (i) the aggregate amount of all Incremental Facilities established on any date shall not exceed the sum of (x) an amount equal to the Base Incremental Amount on such date, plus (y) an additional amount equal to the Voluntary Prepayment Amount on such date plus (z) an additional amount equal to the Maximum Incremental Ratio Amount as of such date (the sum of the amounts in clauses (x), (y) and (z), the “Incremental Availability Amount”) (it being understood that (A) the aggregate principal amount applicable Borrower shall be deemed to have utilized amounts under clauses (or committed amounty) and/or (z) above prior to utilization of amounts under clause (x) above, and if applicable) of all Incremental Term Loans and Incremental Revolving Commitmentsthe applicable Borrower does not make an election, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtapplicable Borrower shall be deemed to have elected clause (z), shall not exceed the Incremental Cap;
(B) the proceeds from any incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clauses (y) and/or (z) above and then calculating the incurrence under clause (x) with respect to above (it being understood that any Incremental Term Loans being amounts incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or under clauses (x) and/or (y) otherwise, above concurrently with amounts incurred under clause (z) above will not count as Indebtedness for the purposes of calculating the applicable Incremental Facility Activation Date, immediately prior to ratio in clause (z) thereof at the time of such concurrent incurrence) and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower may reclassify utilizations among clauses (x), (y) and (z) above if, at the time of such reclassification, the Parent Borrower would be permitted to incur the aggregate principal amount of Indebtedness being so reclassified), (ii) each Incremental Facility shall be in compliancea minimum aggregate principal amount of $10,000,000, as (iii) the Loans in respect of any Incremental Facility Activation Date, and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) guaranteed on a pro forma pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (including giving pro forma effect to B) secured by the applicable Additional Credit Extension Amendment Collateral (including and no other property) and the making Liens on the Collateral securing such Incremental Facility and all other obligations in respect thereof shall be pari passu with the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to prepayments on the same basis as the Term B Loans and any unless the applicable Incremental Revolving Commitments thereunder Facility Activation Notice specifies a lesser treatment, (and assuming, v) except in the case of any Additional Credit Extension Amendment with respect a bridge loan the terms of which provide for an automatic extension of the maturity date thereof to Incremental Revolving Commitments a date that such commitments are fully drawn) without would satisfy the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)following requirement in this clause (v), with such Incremental Term Loans shall have a final maturity no earlier than the financial covenants set forth in Section 7.1, recomputed as Latest Maturity Date of the last day Term B Facility (determined immediately prior to incurrence of such Incremental Term Loans), (vi) except in the case of a bridge loan the terms of which provide for an automatic extension of the most recently ended fiscal quarter of maturity date thereof to a date that would satisfy the Parent Borrower for which financial statements are available;
following requirement in this clause (D) in no event shall it be a condition to the effectiveness ofvi), or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of such Incremental Term Facility shall be no shorter than that of any existing Term B Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term B Loans), (vii) the interest rates, currency, discounts, premiums, rate floors, fees and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the applicable Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or other fees paid to all lenders or interest rate floors) for any Incremental Term Facility denominated in Dollars shall be more than 50 basis points higher than the corresponding all-in-yield (giving effect to interest rate margins, original issue discount, upfront fees or other fees paid to all lenders and interest rate floors) for any then existing Term B Loans as determined by the Administrative Agent in accordance with standard market practices, then the all-in-yield with respect to the outstanding Term B Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Term B Loans is equal to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇▇) any Incremental Term Facility shall be no earlier than on terms and pursuant to documentation to be determined by the weighted average life applicable Borrower and the Lenders providing such Incremental Term Facility; provided that to maturity of the Initial Term Facility extent that (except in the case of customary high-yield bridge loans which, subject to customary conditions clauses (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than iv) through (vii) above) the Initial Term Facility);
(F) all Incremental Term Loans terms and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms documentation of any Incremental Term Facility, if Facility are not consistent with the applicable existing terms and documentation of the Term B Facility, they shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower Agent and the lenders in respect of such Incremental Term Facility elect lesser payments;
(Hix) any Incremental Revolving Commitments and the Revolving Loans in respect thereof Facility shall be on terms and pursuant to the terms hereof otherwise documentation applicable to the Revolving Facility (including the maturity date in respect thereof) (it being understood that, if required to consummate an Incremental Revolving Facility, the applicable Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility for all Revolving Lenders under the Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Commitments shall become Facility without any requirement to pay such amounts to any existing Revolving Commitments under this Agreement after giving effect to Lenders that do not participate in such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Revolving Facility). No Lender shall have any obligation to participate in any increase described in this paragraph Incremental Facility unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility additional bank, financial institution or other entity which, with the consent of the applicable Borrower and the Administrative Agent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed or conditioned), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit I-2 or in such other form as is reasonably satisfactory acceptable to the Administrative Agent and(including, for the avoidance of doubt, the Second Amendment), whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon the effectiveness of any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24, (A) the Revolving Percentages of the Revolving Lenders shall be automatically adjusted to give effect to such increase, provided that the amount of each Lender’s Revolving Commitments (other than a Lender that has agreed to participate in such increase and whose Revolving Commitments shall have been increased in connection with such increase) shall remain unchanged and (B) the Borrowers, the Administrative Agent and the Revolving Lenders will assign and assume outstanding Revolving Loans of the affected category to conform the respective amounts thereof held by each Revolving Lender to the Revolving Percentages as so adjusted.
(d) Each Incremental Facility Activation Notice may, without the consent of any Lender (other than the applicable Incremental Term Lenders) effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.24. This Section shall supersede any provision of Section 10.1 to the contrary.
(e) In each case subject to Section 1.3, it shall be a condition precedent to the availability of such Incremental Facility that (i) no Event of Default (or, in the case of any Incremental Revolving LoansAcquisition Term Facility, no Event of Default under clauses (a) or (f) of Section 8) shall have occurred and be continuing immediately prior to and immediately after giving effect to the Issuing Lenders and the Swingline Lender and incurrence of such Incremental Facility, (ii) shall become a Lender under this Agreement pursuant solely to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed the extent required by the Administrative Agent, on each Lenders providing such Incremental Facility Closing Date with respect to the Revolving Facility, the representations and warranties set forth in each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower Document (andor, in the case of Eurocurrency Loans or any Incremental Acquisition Term Benchmark LoansFacility, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicablethe Specified Representations and the Specified Acquisition Agreement Representations) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date shall be true and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders correct in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable all material respects (or, until the expiration if qualified by materiality, in all respects) on and as of the then-current Interest PeriodIncremental Closing Date immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility, except to the extent expressly made as of an earlier date, in which case they shall be so true and correct as of such earlier date and (iii) solely to the extent required by the Lenders providing such Incremental Facility, the Loan Parties shall have delivered such certificates and other rate documents (including, to the extent requested, legal opinions) as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything reasonably requested by such Lenders in connection with such Incremental Facility, in each case, reasonably equivalent to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided comparable documents delivered on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this AgreementDate.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower may by written notice to the Administrative Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, the “Incremental Revolving Credit Commitments”) and/or increase the existing Term B Commitments or any Additional Borrower and any Incremental Term Loan Commitments and/or incur one or more Lenders new term loan commitments (including New Lendersthe “Incremental Term Loan Commitments”), by an amount (1) not to exceed in the aggregate, at the time of incurrence, the Incremental Available Amount referred to in clauses (a), (b) and (c)(i) of the definition thereof and (2) not less than, individually, $25,000,000.
(b) Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period of time as may from time be agreed to time agree by the Administrative Agent in its sole discretion); and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that such Lenders are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall makebe designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, obtain or increase the amount of their any Incremental Term Loans or Revolving Commitments (may be treated as part of the same Class as any such increased Revolving Commitments, “other Incremental Revolving Commitments” and any facility under which Term Loans if such Incremental Term Loans have identical terms (other than effective yield) and are fungible for United States federal income tax purposes with such other Incremental Term Loans.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Incremental Revolving Credit Commitments and the Incremental Revolving Loan Lenders or Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable and (ii) in the case of each notice to any applicable Revolving Credit Lender of any such given Class, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans of such Class, in each case subject to the assignments contemplated by this Section.
(d) Such Incremental Revolving Credit Commitments are or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that:
(i) (x) subject, solely in the case of Incremental Term Loans, to Section 1.09(c), no Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable and the extensions of credit to be made availablethereunder on such date; provided that this clause (i)(x) may be waived or limited as agreed in the Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (y) the representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) on and as of such date, except in each case to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date); provided that, in the case of Incremental Term Loans incurred to finance a Permitted Acquisition or other Investment in the nature of an acquisition, this clause (i)(y) shall be limited to Sections 5.01(a), 5.01(b), 5.02(a), 5.13, 5.17, 5.18, 5.19 (other than the first or second sentence thereof) and 5.20;
(ii) with regard to the incurrence of any additional Class of Incremental Term Loans incurred pursuant to this Section 2.14, the yield applicable to each such additional Class of Incremental Term Loans shall be determined by the Borrower and the applicable lenders under such additional Class of Incremental Term Loans as set forth in the applicable Joinder Agreement; provided that the Effective Yield applicable to such additional Class of Incremental Term Loans will not be more than fifty (50) basis points greater than the Effective Yield for 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 Facility”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 executing the Guarantors and delivering 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 Additional “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Extension Amendment specifying Loan of the Class being so increased and (iii) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto.
(f) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Class (or any Incremental Term Loan Commitments increasing any existing Term Loans) are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class or increase shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class or increase and (ii) each Incremental Term Loan Lender of such Class or increase shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class or increase and the Incremental Term Loans of such Class or increase made pursuant thereto.
(g) The terms (including pricing, 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 amount terms of such increase Indebtedness shall not be more restrictive, taken as a whole, to the Borrower and the Facility other Loan Parties than those set forth in this Agreement prior to the execution of such Joinder Agreement unless (x) such terms apply only after the Latest Maturity Date at the time such Indebtedness is established or Facilities involved(y) this Agreement is amended so that such terms are also applicable for the benefit of any Lenders under any then-existing Facilities, (ii) the applicable Weighted Average Life to Maturity of all Incremental Facility Closing DateTerm Loans of any such Class shall be no shorter than the Weighted Average Life to Maturity of any other Term Loans at the time of the incurrence of such Incremental Term Loans, (iii) the applicable Borrower(sIncremental Term Loan Maturity Date of each Class shall be no earlier than the Latest Maturity Date at the time of the incurrence of such Incremental Term Loans, (iv) the pricing of each Class of Incremental Term Loans may be subject to “most favored nations” provisions if and to the extent set forth in the Joinder Agreement for such Class and (ivv) in the case of Incremental Term Loans, such Indebtedness may participate on a pro rata basis or less than pro rata basis (wbut not on a greater than pro rata basis) in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Joinder Agreement, and in the case of Incremental Term Maturity DateRevolving Credit Commitments, (x) the amortization schedule for such Incremental Term Loans and Revolving Credit Commitments may participate on a pro rata basis or less than pro rata basis (ybut not on a greater than pro rata basis) in any mandatory reductions of Revolving Credit Commitments hereunder, as specified in the Applicable Margin for such Incremental Term Loans; provided, that:applicable Joinder Agreement.
(Ah) The terms and provisions of the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Revolving Loans and Incremental Revolving CommitmentsCredit Commitments shall be identical to the other Revolving Credit Loans of the Class being so increased and the Revolving Credit Commitments of the Class being so increased; provided that if the Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving Credit Facility of the Class being so increased, together the interest rate on the Revolving Credit Facility of such Class shall be increased to equal such required rate without further consent of the affected Lenders.
(i) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14 (including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to enable any Incremental Term Loans that are intended to be fungible with any other Term Loans to be fungible with such other Term Loans, which shall include any amendments that modify the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall scheduled installment payments to the extent such amendment does not exceed decrease the Incremental Cap;
(B) (x) with respect to any Incremental installment payment an existing Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately Lender would have received prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderamendment).
(dj) Notwithstanding anything This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties heretocontrary.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders Holdings may by written notice to the Administrative Agent elect to request (including New LendersA) may from time prior to time agree that such Lenders shall makethe Maturity Date of the Revolving Credit Facility, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Credit Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or (B) prior to the Maturity Date of the Term A Facility, the establishment of one or more new term loan A commitments (the “Incremental Term Loans or Loan A Commitments”) by an amount not in excess of $250,000,000 in the aggregate (such amount, the “Incremental Capacity”) and not less than $25,000,000 individually. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which Holdings proposes that the Incremental Revolving Commitments are made availableor Incremental Term Loan A Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) and (ii) the identity of each Lender or other Person, which must be an Eligible Assignee (each, an “Incremental FacilityRevolving Loan Lender” or “Incremental Term Loan A Lender”), as applicable) to whom Holdings proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan A Commitments, as applicable, by executing be allocated and delivering the amounts of such allocations. Any Lender approached to provide all or a portion of the Administrative Agent Incremental Revolving Commitments or Incremental Term Loan A Commitments may elect or decline, in its sole discretion, to provide an Additional Credit Extension Amendment specifying Incremental Revolving Commitment or an Incremental Term Loan A Commitment. Such Incremental Revolving Commitments or Incremental Term Loan A Commitments shall become effective as of such Increased Amount Date; provided that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment such Incremental Revolving Commitments or Incremental Term Loan A Commitments, as applicable, and the extensions of credit to be made thereunder on such date; (including ii) both before and immediately after giving effect to the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)A Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 4.03 shall result therefrom;
be satisfied; (Ciii) the Parent Borrower Holdings shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to compliance with each of the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.17.11 and the Senior Secured Leverage Ratio of Holdings shall be less than or equal to 2.50:1.00, recomputed in each case as of the last day of the most recently ended fiscal quarter and as of the Parent Borrower Increased Amount Date (assuming for which financial statements are available;
(D) in no event such purpose that the relevant ratios shall it be a condition to the effectiveness ofhave been calculated taking into account all Consolidated Funded Indebtedness outstanding on such date, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity Consolidated EBITDA as of the Initial Term Facility most recently completed Measurement Period and the Consolidated Cash Interest Expense for such Measurement Period (except assuming for such purpose that such Consolidated Funded Indebtedness had been outstanding on the first day of and through the end of such Measurement Period and measuring such ratios against those for the most recently ended period in the case of customary high-yield bridge loans which, subject question set forth in Section 7.11 (as applicable))) after giving effect to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of such Incremental Revolving Commitments or Incremental Term Loan A Commitments and the extensions of credit to be made thereunder on such date, as applicable; (iv) the Incremental Revolving Commitments or Incremental Term Loan A Commitments, as applicable, shall be effected pursuant to one or more Incremental Joinder Agreements executed and delivered by Holdings or the applicable Revolving Credit Borrowers, as applicable, the Incremental Revolving Loan Lender(s) or the Incremental Term Loan A Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender and Incremental Term Loan A Lender shall be subject to the requirements set forth in Section 3.01); (v) the Incremental Facilities shall rank pari passu in right of payment security with the Revolving Credit Facility and right of security the Term A Facility, (vi) all reasonable fees and out-of-pocket expenses actually incurred owing to the Administrative Agent and the Lenders (other than a Defaulting Lender) in respect of the Collateral Incremental Revolving Commitments and Incremental Term Loan A Commitments shall have been paid, (vii) the incurrence of Incremental Term A Loans, Incremental Revolving Commitments and/or Incremental Revolving Loans shall be permitted at such time under the SpinCo Notes Documents and any other indenture, loan agreement or other material agreement to which Holdings or any of its Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject and (viii) Holdings shall deliver or cause to be delivered legal opinions, officer’s certificates and such other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term A Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term A Loans for all purposes of this Agreement or, if made on terms identical to the Term Loans A Loans, may constitute a part of the Term A Facility.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans and none of the obligors or guarantors with respect thereto outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Credit Commitments, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Person that is not Revolving Credit Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan Party;
and (Giii) except each Incremental Revolving Loan Lender shall become a Lender with respect to pricing the Incremental Revolving Commitment and fees or as otherwise set forth in this Section 2.25(a), all terms of matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term FacilityLoan A Commitments of any Series are effective, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory subject to the Administrative Agent; provided that satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan A Lender of any Series shall share ratably make a Loan to Holdings (an “Incremental Term A Loan”) in an amount equal to its Incremental Term Loan A Commitment of such Series and (ii) each Incremental Term Loan A Lender of any mandatory prepayments Series shall become a Lender hereunder with respect to the Incremental Term Loan A Commitment of the applicable Term Facility unless the Parent Borrower such Series and the lenders Incremental Term A Loans of such Series made pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of Holdings’ notice of each Increased Amount Date and in respect of such Incremental Term Facility elect lesser payments;
thereof (Hi) any the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders, the Series of Incremental Term Loan A Commitments and the Incremental Term Loan A Lenders of such Series of such Series, as applicable and (ii) in the case of each notice to any applicable Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, in each case subject to the assignments contemplated by this Section 2.14.
(e) Except as otherwise provided herein, the terms and documentation in respect of any Incremental Term A Loans and Incremental Term Loan A Commitments shall be reasonably satisfactory to Holdings, the Administrative Agent and the Incremental Term Loan A Lenders; provided that the terms and provisions of the Incremental Term A Loans and Incremental Term Loan A Commitments of any Series shall be, except as otherwise set forth herein or as otherwise agreed by Holdings, the Administrative Agent and the Incremental Term Loan A Lenders and set forth in the Incremental Joinder Agreement, identical to the Term A Loans. Notwithstanding the foregoing, (i) the Weighted Average Life to Maturity of all Incremental Term A Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Term A Loans, (ii) the applicable Incremental Term Loan A Maturity Date of each Series shall be no shorter than the latest final maturity date of the Term A Loans, and (iii) the yield applicable to the Incremental Term A Loans of each Series shall be determined by Holdings and the applicable new Lenders and shall be set forth in each applicable Incremental Joinder Agreement; provided, however, that if the All-in Yield applicable to the Incremental Term A Loans exceeds the applicable All-in Yield of the Term A Loans by more than 0.50% per annum, the applicable interest rate of the Term A Loans shall be increased (without further consent of the affected Lenders) so that the All-in Yield applicable to the Incremental Term A Loans is not more than 0.50% per annum more than the All-in Yield applicable to the Term A Loans.
(f) The terms and provisions of the Incremental Revolving Loans in respect thereof shall be pursuant identical to the terms hereof otherwise Revolving Credit Loans; provided that if the applicable Incremental Revolving Loan Lenders require an interest rate in excess of the interest rate then applicable to the Revolving Credit Facility, the interest rate on the Revolving Credit Facility and shall be increased to equal such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;required rate without further consent of the affected Lenders.
(Ig) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.14.
(bh) Any New Lender that elects to provide Commitments under an Incremental Facility (iThis Section 2.14 shall supersede any provisions in Section 2.13 or Section 11.01(a) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendmentcontrary.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (ACCO BRANDS Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request an increase in the Commitments pursuant to the establishment, during the Availability Period, of Incremental Revolving Commitments; provided that the aggregate amount of all the Incremental Revolving Commitments established hereunder shall not exceed $100,000,000 during the term of this Agreement. Each such notice shall specify (including New LendersA) the date on which the Borrower proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as may from time be agreed to time agree that by the Administrative Agent) after the date on which such Lenders shall makenotice is delivered to the Administrative Agent, obtain or increase and (B) the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or the Incremental Revolving Commitments are being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent, each Issuing Bank and the Swingline Lender (such approvals not to be unreasonably withheld, conditioned or delayed)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made availablethereunder shall be identical to those of the Commitments (as in effect immediately prior to the effectiveness of such Incremental Revolving Commitment) and Loans and other extensions of credit made thereunder; provided that, an “if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Facility”)Revolving Commitments or Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Commitments or Loans and other extensions of credit made thereunder, as applicable, by executing shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Loans and delivering other extensions of credit made thereunder, as the case may be; provided further that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the other Commitments.
(c) The Incremental Revolving 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 Revolving Commitments and the Administrative Agent an Additional Credit Extension Amendment specifying Agent; provided that no Incremental Revolving Commitments shall become effective unless (i) on the amount date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Revolving Commitments (and giving effect to any utilization of such increase Incremental Revolving Commitments on such date, if any), no Default shall have occurred and the Facility or Facilities involvedbe continuing, (ii) on the applicable Incremental Facility Closing Datedate of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (iii) the applicable Borrower(s) and (ivA) in the case of Incremental Term Loansthe representations and warranties qualified as to materiality, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans “Material Adverse Effect” or similar language in all respects and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”otherwise, no Default or Event of Default has occurred in all material respects, in each case on and is continuing as of such date, except in the date case of entry into the applicable acquisitionany such representation and warranty that expressly relates to a prior date, merger or similar agreement governing in which case such acquisition or (y) otherwise, representation and warranty shall be so true and correct on and as of the applicable Incremental Facility Activation Datesuch prior date, immediately prior to and (iii) after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or such Incremental Revolving Commitments pursuant thereto(and giving effect to any utilization of such Incremental Revolving Commitments on such date, if any), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Daterelated transaction, on a pro forma basis (including giving pro forma effect to in accordance with Section 1.04(b), but without taking into account the applicable Additional Credit Extension Amendment (including the making proceeds of any Incremental Term Loans and any borrowings under such Incremental Revolving Commitments thereunder (or Permitted Investments made therewith) for purposes of calculating the pro forma Senior Secured Net Debt Ratio, the Parent and assuming, the Borrower shall be in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made compliance with the proceeds thereof)), with the financial covenants set forth in Section 7.1Sections 6.12, recomputed 6.13 and 6.14 (in each case, calculated as of the last day of or for the period of four consecutive fiscal quarters of the Parent then most recently ended fiscal quarter for which the financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or prior to the first such delivery of any such financial statements, as of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness last day of, or Borrowing underfor, any Incremental Facility that any representation or warranty the period of any Loan Party be true and correct in all material respects, except and solely four consecutive fiscal quarters of the Data Center Predecessor most recently ended prior to the extent date of this Agreement)) and (iv) the Borrower shall have delivered to the Administrative Agent a certificate executed by a Responsible Officer of the Borrower, (A) certifying to such officer's knowledge, compliance with the requirements of the preceding clauses (i) through (iii), inclusive, and (B) containing the calculations (in reasonable detail) required by the lenders providing preceding clause (iii). Each Incremental Facility Agreement may, without the consent of any Lender, effect such Incremental Facility;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.
(Ed) the weighted average life to maturity The effectiveness of any Incremental Term Facility Revolving Commitments shall also be no earlier than subject to (i) the weighted average life delivery, or agreement to maturity deliver by a date following effectiveness reasonably acceptable to the Administrative Agent, by the Parent and its Subsidiaries of such reaffirmation agreements, supplements and/or amendments to the Initial Term Facility Security Documents (except including, in the case of customary highMortgages, mortgage amendments and date-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except down endorsements with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facilityinsurance policies, shall be determined between in each case to the Parent Borrower and extent applicable) as are reasonably requested by the lenders for such Incremental Term Facility and reasonably satisfactory Administrative Agent, (ii) delivery to the Administrative Agent; provided that Agent by each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect Loan Party of such Incremental Term Facility elect lesser payments;
officers' certificates, board of director (Hor equivalent governing body) any Incremental Revolving Commitments resolutions and the Revolving Loans in respect thereof shall be pursuant evidence of good standing (to the terms hereof otherwise extent available under applicable to law) as the Revolving Facility and Lenders providing such Incremental Revolving Commitments shall become reasonably request and (iii) such other conditions as the Borrower and the Lenders providing such Incremental Revolving Commitments shall agree.
(e) Upon the effectiveness of an Incremental Revolving 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) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under this Agreement the other Loan Documents, and (ii) (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(f) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Revolving Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender's Applicable Percentage (calculated after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment effectiveness of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and Commitments) multiplied by (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender's Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such TypeIncremental Revolving Commitments shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Lender's Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, Eurocurrency Tranche or Term Benchmark Tranche requested (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender's Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender's Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Revolving Commitments, the Borrower shall be so borrowed or effected by deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Borrower shall deliver such Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) and (vii) the Borrower had been proportionately increasedshall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The Eurocurrency Rate applicable deemed payments of the Existing Revolving Borrowings made pursuant to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed clause (i) above shall be subject to compensation by the Borrower pursuant to the preceding sentence provisions of Section 2.15 if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto. 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 equal the Eurocurrency Rate then applicable not apply to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable transactions effected pursuant to this clause (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderf).
(dg) Notwithstanding anything to The Administrative Agent shall notify the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.20(a) and of the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as effectiveness of any Incremental Revolving Commitments, subject in each case advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.20(f).
(h) This Section 2.20 shall supersede any provision in Section 2.17 or 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time by written notice to time agree that such Lenders shall makeAdministrative Agent elect to request, obtain or prior to the Revolving Commitment Termination Date, an increase to the amount of their Incremental Term Loans or existing Revolving Commitments in an aggregate amount not to exceed $125,000,000 during the term of this Agreement100,000,000 following the Second Amendment Effective Date (any such increased increase, the “New Revolving Loan Commitments”); provided, that the aggregate amount of New Revolving Loan Commitments shall not result in the aggregate Commitments exceeding the “Incremental Revolving CommitmentsABL Cap Amount” under (and as defined in) the ABL Intercreditor Agreement or cause any facility similar limit under which any other intercreditor agreement to be exceeded. Each such Incremental Term Loans or Incremental Revolving Commitments are made availablenotice shall specify (A) the date (each, an “Incremental FacilityIncreased Amount Date”)) on which Borrower proposes that the New Revolving Loan Commitments shall be effective, as applicable, by executing and delivering which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying or such shorter period of time as consented to by Administrative Agent (iB) the amount of such increase and the Facility or Facilities involved, New Revolving Loan Commitments (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(swhich amount shall be at least $5,000,000) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as identity of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, each Lender or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a other Person that is not an Eligible Assignee (each, a “New Revolving Loan Party;
(GLender”) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms whom Borrower proposes any portion of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall such New Revolving Loan Commitments be determined between the Parent Borrower allocated and the lenders for amounts of such Incremental Term Facility and reasonably satisfactory to the Administrative Agentallocations; provided that each Incremental Term Facility shall share ratably Administrative Agent may elect or decline to arrange such New Revolving Loan Commitments in its sole discretion and any mandatory prepayments Lender approached to provide all or a portion of the applicable Term Facility unless the Parent Borrower and the lenders New Revolving Loan Commitments may elect or decline, in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental its sole discretion, to provide a New Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without Loan Commitment; provided, further, that, if the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 Issuing Bank and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no each Swing Line Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to the terms of Section 10.6 10.07, each Lender and other Person that the Borrower proposes to become a New Revolving Loan Lender must be reasonably acceptable to Administrative Agent, each Issuing Bank and each Swing Line Lender (such the consent of each of the Administrative Agent, each Issuing Bank and each Swing Line Lender not to be unreasonably withheld, delayed conditioned or conditioneddelayed). Such New Revolving Loan Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Specified Event of Default shall exist at the time of, or result after giving effect to, such Increased Amount Date by giving effect to such New Revolving Loan Commitments; (2) the New Revolving Loan Commitments shall be effected 154 pursuant to one or more Joinder Agreements executed and delivered by Borrower, the New Revolving Loan Lender, and Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender shall be subject to the requirements set forth in Section 3.01(3); (3) Borrower shall make any payments required pursuant to Section 3.04 in connection with the New Revolving Loan Commitments; and (4) Borrower shall deliver or cause to be delivered any legal opinions, mortgage amendments (including updated and increased title insurance amount), notes or other documents reasonably requested by Administrative Agent in connection with any such transaction. On any Increased Amount Date on which New Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Loan 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 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 reasonably satisfactory necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Loan Commitments to the Revolving Commitments, (b) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto. Administrative Agent andshall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the New Revolving Loan Lenders, and (z) in the case of each notice to any Incremental Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the Issuing Lenders assignments contemplated by this Section 2.15. The terms and provisions of the Swingline Lender New Revolving Loans shall be identical to the Revolving Loans; provided that if the Borrower determines to increase the Applicable Margin or fees payable in respect of the New Revolving Loan Commitments, such increase shall be permitted if the Applicable Margin or fees payable in respect of all Revolving Commitments and (ii) Revolving Loans shall be increased to equal such Applicable Margin or fees payable in respect of the New Revolving Loan Commitments; provided further that the Borrower at its election may pay arrangement, upfront or closing fees with respect to any New Revolving Loan Commitments without paying such fees with respect to the existing Revolving Commitments. New Revolving Loan Commitments shall become a Lender Commitments under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed amendment to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each New Revolving Loan Lender providing such New Revolving Loan Commitments and the Administrative Agent. Such amendment may, without the consent of any other Loan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. In 155 connection with any such amendment, Borrower shall, if reasonably requested by the Administrative Agent, on each Incremental Facility Closing Date with respect deliver customary reaffirmation agreements and/or such amendments to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, Collateral Documents as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing reasonably requested by the Administrative Agent and in order to ensure that such New Revolving Loan Commitments are provided with the Parent Borrower and furnished to benefit of the other parties heretoapplicable Loan Documents.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions after the Closing Date, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Commitments; provided that the aggregate amount of the Incremental Commitments established under this Section 2.21 on any date, together with the aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) on such date, shall not exceed an “amount equal to the Base Incremental Facility”)Amount in effect on such date, and an additional amount subject to the Maximum Incremental Amount as of such date. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such increase Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that the Facility or Facilities involvedCompany proposes to become an Incremental Lender, (ii1) the applicable Incremental Facility Closing Dateif such Person is not then a Lender, (iii) the applicable Borrower(s) must be an Eligible Assignee and (iv2) in the case of an Incremental Revolving Commitment, must be reasonably satisfactory to the Administrative Agent, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Company and the Incremental Revolving Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term LoansFacility and the Incremental Term Loans to be made thereunder shall be, (w) except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the Term Maturity Date, (x) B-1 Commitments or Term B-2 Commitments and the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental related Term Loans; provided, that:
provided that (Ai) the aggregate principal amount (or committed amountupfront fees, if applicable) of all Incremental Term Loans interest rates and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect amortization schedule applicable to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred Facility and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to determined by the applicable Additional Credit Extension Amendment (including Company and the making of any Incremental Term Loans and any Lenders providing the relevant Incremental Revolving Commitments thereunder Term Commitments, (and assuming, ii) except in the case of any Additional Credit Extension Amendment with respect an Incremental Term Facility effected as an increase to Incremental Revolving Commitments that such commitments are fully drawn) without the netting an existing Class of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))Term Loans, with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the weighted average life to maturity of the Initial Term Facility Loans with the latest Maturity Date (except in calculated based on the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity of such Term Loans as of the date of funding thereof (giving effect to any amendments thereto)), (iii) if the weighted average yield relating to any Incremental Term Loan exceeds the weighted average yield relating to any Class of Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (to be determined by the Initial Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase in the interest rate floor applicable to such Class of Term FacilityLoans would result in an increase in an interest rate then in effect for such Class of Term Loans hereunder);
(F) all ), then the Applicable Rate relating to such Class of Term Loans shall be adjusted so that the weighted average yield relating to such Incremental Term Loans and shall not exceed the weighted average yield relating to such Class of Term Loans by more than 0.50%; provided that, with respect to any Revolving Loans made in respect Series of Incremental Revolving Commitments Term Loans (the “Declining Series”), the benefit of this clause (iii) shall rank pari passu in right not apply with respect to the incurrence of payment and right of security other Incremental Term Loans if the applicable Incremental Facility Amendment in respect of the Declining Series so provides and (iv) no Incremental Term Maturity Date shall be earlier than the latest Maturity Date with respect to any Term Loan. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Term Loans Liens on the Collateral securing the other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company, the Borrowing Subsidiaries (G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(athe case of Incremental Revolving Facilities), all terms of any each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph effective unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment no Default or Event of such Loans or Commitments pursuant to Section 10.6 Default (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andor, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving LoansFacility, no Event of Default under clause (a), (b), (h) or (i) of Article VII) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the Issuing Lenders representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Swingline Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section 2.21 and (iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.21.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall become constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender under this Agreement pursuant and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Additional Credit Extension Incremental Term Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cg) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or (ii) the establishment of Incremental Facility”)Term Loan Commitments. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying Agent, and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoan Commitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect Lender approached to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and provide any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, Commitment or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans whichLoan Commitment may elect or decline, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects , to provide Commitments under such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Facility (i) to the extent Lender, if such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent Person is not to be unreasonably withheldthen a Lender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansLender, the Issuing Lenders Banks and the Swingline Lender and (z) none of the Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20 shall not exceed $50,000,000 and shall be in minimum increments of $10,000,000 (or such other lower amount as may be agreed to by the Administrative Agent).
(b) The terms and conditions of 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 (other than with respect to customary arrangement, upfront and similar fees), and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall become not contain covenants or events of default applicable to such Incremental Term Loans that are more onerous or more restrictive in any material respect (taken as a Lender under whole), as determined in good faith by the board of directors of Holdings (or the Borrower prior to the Mergers, as applicable), than the covenants applicable to the Revolving Loans and (iii) shall have the same Guarantees as, and shall rank pari passu or junior to the Liens on the Collateral and in right of payment with, the Revolving Loans (and in the case of this clause (iii), to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to rank junior, such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Maturity Date and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans. Any Incremental Term Loan Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) Unless otherwise agreed The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Borrower has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect (including pro forma effect) to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the representations and warranties set forth in Article III shall be true and correct in all material respects prior to, and immediately after giving effect to, such Incremental Commitments, except to the extent any such representations or warranties are expressly limited to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such specified earlier date (provided that no materiality qualifier set forth in this subclause (ii) shall be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), (iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof (and (A) assuming, in the case of any Incremental Revolving Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn, (B) after giving effect to any permitted pro forma adjustment events and any permitted repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with the effectiveness of such Incremental Commitments and (C) excluding the proceeds of any such Incremental Commitments for purposes of determining Liquidity in the calculation of the Consolidated Total Leverage Ratio), the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11 (after giving effect to any then applicable Acquisition Holiday), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no 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) or (i) of Section 7.01 is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects as of the date of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, except to the extent any such representations or warranties are expressly limited to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such specified earlier date (provided that no materiality qualifier set forth in this subclause (3) shall be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), (4) as of the date of the borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Incremental Lenders providing such Incremental Term Loans) shall be true and correct in all material respects immediately before and after giving effect to the incurrence of such Incremental Term Loans, except to the extent any such representations or warranties are expressly limited to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such specified earlier date (provided that no materiality qualifier set forth in this subclause (4) shall be applicable to any representations and warranties that are already qualified by materiality or Material Adverse Effect) and (5) as of the date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.11. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, on each Incremental Facility Closing Date with respect to give effect to the Revolving Facility, each Borrower shall borrow Revolving Loans under provisions of this Section and no consent of any Lender (other than the relevant increased Revolving Commitments from each Lender Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20. On the effective date of any increase in the Commitments, (i) each relevant Incremental Revolving Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day of the related Interest Periods. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time.
(a) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving 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.
(b) On the date of effectiveness of any Incremental Revolving Commitments, each Lender with a Revolving Commitment (immediately prior to giving effect to such Incremental Revolving Commitments) shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders with Revolving Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(c) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the Borrower in an amount determined equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the Borrower referred to in paragraph (a) above and of the amount effectiveness of any Incremental Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the conditions set forth in Section 5 be made pursuant to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementparagraph (e) above.
Appears in 1 contract
Sources: Credit Agreement (CommerceHub, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or after the Closing Date elect to increase the amount of their Incremental Term Loans Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableexisting tranche of) term loans denominated in Dollars (each, an “Incremental FacilityTerm Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments and (y) $20,000,000 (or such lesser amount as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedmay agree), (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoans so long as, (w) after giving effect thereto, the applicable Incremental Term Maturity Date, (x) the amortization schedule for aggregate amount of all such Increased Commitments and all such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental other than Refinancing Term Loans and Incremental Refinancing Revolving Commitments, together with ) does not exceed $300,000,000 less the aggregate principal amount of any Permitted Incremental Equivalent DebtIndebtedness previously incurred by the Borrower and its Restricted Subsidiaries. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment or Extended Revolving Commitment, shall not exceed the Incremental Cap;
(B) (x) with respect or to any participate in such Incremental Term Loans being incurred to finance a Permitted Acquisition Loan, an “Increasing Lender”), or a similar permitted Investment designated by the Parent Borrower as one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “Limited Conditionality AcquisitionNew Lender”), no Default to increase their existing Revolving Commitment or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisitionExtended Revolving Commitment, merger or similar agreement governing to participate in such acquisition Incremental Term Loan, or (y) otherwiseextend Revolving Commitments or Extended Revolving Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment case may be; provided that each New Lender (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingand, in the case of any Additional Credit Extension Amendment with respect an Increased Commitment, each Increasing Lender) shall be subject to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as approval of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness ofand, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required under Section 9.04 for an assignment of to such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldNew Lender, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the consent of any Incremental Revolving LoansLenders other than the relevant Increasing Lenders or New Lenders, the Issuing Lenders this Agreement and the Swingline Lender and (ii) shall become a Lender under this Agreement other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the date agreed by the Borrower, the Administrative AgentAgent and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, on each Incremental Facility Closing Date with respect to no increase in the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Commitments or Extended Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency or Incremental Term Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if shall be permitted under this paragraph unless (i) each on the proposed date of the effectiveness of such Type, Eurocurrency Tranche increase in the Revolving Commitments or Term Benchmark Tranche had been borrowed Extended Revolving Commitments or effected by such Borrower on borrowing of such Incremental Facility Closing Date Term Loan, the conditions set forth in paragraphs (a) and (iib) of Section 4.02 shall be satisfied or waived by the aggregate amount Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of each such Typethe Borrower; provided, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant that to the preceding sentence shall equal extent agreed to by the Eurocurrency Rate then applicable to the Eurocurrency Loans Lenders providing such Increased Commitments or Adjusted Incremental Term SOFR Rate for Term Benchmark Loans, as applicable, and the proceeds of such Increased Commitments or Incremental Term Loans, as the case may be, are used to finance a Permitted Acquisition or similar Investment, with respect to the condition set forth in Section 4.02(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.02(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenants contained in Section 6.09 as of the last day of the most recent fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders in the same Eurocurrency Tranche or Term Benchmark TrancheLenders, as applicable (orbeing required in order to cause, until after giving effect to such increase and the expiration use of such amounts to make payments to such other Lenders, each Lender’s portion of the then-current Interest Periodoutstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such other rate as Revolving Loans shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything on or prior to the contrary in this Agreement, each effectiveness of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall such Increased Commitments be amended prepaid to the extent (but only to necessary from the extent) necessary to reflect the existence and terms proceeds of the Incremental Term additional Revolving Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Parent Borrower Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and furnished pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other parties heretothan on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term Loans, (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Term Loans in any mandatory prepayment hereunder (except in the case of incurrence of Refinancing Indebtedness in respect thereof), (iv) the provisions with respect to payment of interest, original issue discount and upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (iv) above) to the extent not identical to the terms of the then outstanding Term Loans, shall be reasonably satisfactory to the Administrative Agent. The terms of any Increased Commitments shall be the same as those of the Revolving Commitments or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may have a later maturity date than, and pricing and fees different from, those applicable to the Revolving Commitments and Extended Revolving Commitments. For the avoidance of doubt, no Lender shall have any obligation to provide any Increased Commitment or Incremental Term Loan.
(eb) The Closing Date Incremental Revolving Commitments This Section 2.19 shall be provided on the Closing Date as Incremental Revolving Commitments, subject override any provisions in Section 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Sources: Credit Agreement (Cable One, Inc.)
Incremental Facilities. Pursuant to Section 2.20 of the Credit Agreement, on and as of the Increase Effective Date:
(a) The Parent Borrower and/or any Additional Borrower Each 2018 Incremental Lender that is not, prior to the effectiveness of this Agreement, a Term Loan Lender under the Credit Agreement, hereby agrees that upon, and any one or more Lenders (including New Lenders) may from time subject to, the occurrence of the Increase Effective Date, such 2018 Incremental Lender shall be deemed to time agree be, and shall become, a “Term Loan Lender” for all purposes of, and subject to all the obligations of a “Term Loan Lender” under, the Amended Credit Agreement and the other Loan Documents. Each 2018 Incremental Lender shall have an Incremental Term Loan Commitment that such Lenders shall make, obtain or increase is equal to the amount of their set forth opposite such 2018 Incremental Lender’s name under the heading “2018 Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Loan Commitments” and any facility under which on Schedule 2.01(a) to this Agreement (such commitment hereinafter referred to as the “2018 Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental FacilityLoan Commitments”), as applicable, by executing . Each Credit Party and delivering to the Administrative Agent an Additional hereby agree that from and after the Increase Effective Date, each 2018 Incremental Lender shall be deemed to be, and shall become, a “Term Loan Lender” for all purposes of, and with all of the rights and remedies of a “Term Loan Lender” under, the Amended Credit Extension Amendment specifying (i) the amount of such increase Agreement and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any other Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionDocuments.
(b) Any New Each 2018 Incremental Lender that elects hereby agrees to provide Commitments under an make 2018 Incremental Facility (iTerm Loans to the Borrower on the Increase Effective Date in a principal amount not to exceed its respective 2018 Incremental Term Loan Commitment set forth on Schedule 2.01(a) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed Section 1.01 of the Credit Agreement is hereby amended by inserting the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating following new definitions in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.appropriate alphabetical order therein:
Appears in 1 contract
Sources: Incremental Facility Assumption Agreement (Dragoneer Growth Opportunities Corp. II)
Incremental Facilities. On up to four (a4) The Parent occasions at any time after the Effective Date, the Borrower and/or any Additional Borrower and any one or more Lenders may by written notice to the Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased increase, the “New Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Commitments”, together with the New Revolving Commitments, the “Incremental Revolving Commitments” and any facility under which ”), by up to an aggregate amount not to exceed $500,000,000 for all Incremental Commitments. Each such Incremental Term Loans or Incremental Revolving Commitments are made availablenotice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Facility”Commitments shall be effective, which shall be a date not less than ten (10) 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 on any Increased Amount Date shall be in the minimum aggregate amount of $25,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an 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 (z) any Lender or other Person that is an Eligible Assignee (each, a “New Revolving Lender” or “New Term Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Agent (such approval not to be unreasonably withheld or delayed), as applicableand, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental a New Revolving Commitment, the Issuing Banks (such approval not to be unreasonably withheld or delayed), unless such New Revolving Lender or New Term Loans, Lender is an existing Lender. The terms and provisions of any New Revolving Commitments shall be identical to the existing Revolving Commitments. The terms and provisions of any New Term Commitments and any New Term Loans shall (wa) provide that the applicable Incremental maturity date of any New Term Loan that is a separate tranche shall be 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 scheduled amortization payments, (b) share ratably in any prepayments of the existing Term Facility, unless the Borrower and the New Term Lenders in respect of such New Term Loans elect lesser payments and (c) otherwise be identical to the existing Term Loans or reasonably acceptable to the Agent. The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) the amortization schedule for after giving pro forma effect to such Incremental Commitments and, in the case of a New Term Loans Commitment, the borrowings and the use of proceeds thereof, (yi) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing (ii) as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as last day of the applicable Incremental Facility Activation Datemost recent quarter for which financial statements have been delivered pursuant to Section 8.1 or Section 8.2, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be would have been in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, recomputed as of 9.1; (y) the last day of representations and warranties made or deemed made by the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects, ) on the effective date of such Incremental Commitments except and solely to the extent required that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) (on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents; and (z) the Agent shall have received each of the following, in form and substance reasonably satisfactory to the Agent: (i) if not previously delivered to the Agent, copies certified by the lenders providing Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Facility;
Commitments and (EB) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Incremental Commitments; and (ii) a customary opinion of counsel to the Borrower and the Guarantors (which may be in substantially the same form as delivered on the Effective Date), and addressed to the Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lenders. On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Lenders, and each of the New Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Lender shall become a Revolving Lender with respect to its New Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment, and (ii) each New Term Lender shall become a Term Lender hereunder with respect to the New Term Commitment and the New Term Loans made pursuant thereto. The Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the weighted average life to maturity of any Incremental New Revolving Commitments and the New Revolving Lenders or the New Term Facility shall be no earlier than Commitments and the weighted average life to maturity of the Initial New Term Facility Lenders, as applicable, and (except z) in the case of customary high-yield bridge loans whicheach notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required the assignments contemplated by this Section. The upfront fees payable to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial New Revolving Lenders and/or New Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, Lenders shall be determined between by the Parent Borrower and the lenders for such applicable New Revolving Lenders and/or New Term Lenders. The Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by the Borrower, the New Revolving Lenders or New Term Lenders, as applicable, and the Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of the Administrative Agentany other Lenders, (x) each increase effected pursuant effect such amendments to this paragraph shall be in a minimum amount of at least $50,000,000 Agreement and (y) no more than five Incremental Facility Closing Dates the other Loan Documents as are consistent with this Section 2.14 and may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans necessary or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andappropriate, in the case opinion of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to effect the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount provisions of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.14.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Columbia Property Trust, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain (i) add one or more new tranches of term facilities and/or increase the principal amount of their the Term Loans (each such new tranche or increase, an “Incremental Term Loans Facility”) or (ii) increase the aggregate amount of Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental Revolving Facility”; together with any Incremental Term Facilities, the “Incremental Facilities”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (i) the amount of such increase (or loans that will comprise any such new tranche) and the Facility or Facilities involved, (ii) the applicable Incremental Increased Facility Closing Date (which may be selected by the Borrower after the Closing Date, (iii) the applicable Borrower(s) and (iviii) in the case of Incremental Term Loans, (wx) the applicable Incremental Term Maturity DateFacility maturity date, (xy) the amortization schedule for such Incremental Term Loans Facility and (yz) the Applicable Margin for such Incremental Term LoansFacility; provided, that:
that (A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger exists or similar agreement governing such acquisition shall exist immediately before or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment such Incremental Facility; (B) except as otherwise agreed by the Lenders (including the making of any New Lenders) committing to provide such Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Facility, no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof))of which are to be used to finance a Permitted Acquisition, with the financial covenants set forth in Section 7.1, recomputed as each of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respectsrespects immediately prior to, except and solely to the extent required by the lenders providing after giving effect to, such Incremental Facility;
, except for representations and warranties made as of a specific earlier date that shall be true and correct in all material respects as of such earlier date, (EC) except in the case of customary bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith), the terms of which either provide for an automatic extension of the maturity date thereof to a date that would satisfy the following requirement in this clause (C) or require such bridge loans be converted into or exchanged for permanent financing with a maturity date that would satisfy the following requirement in this clause (C), the maturity date and weighted average life to maturity of any such Incremental Term Facility shall be no earlier than or shorter than the maturity date and weighted average life to maturity maturity, respectively, of the Initial Term Facility; (D) the interest rates and amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the Lenders thereunder; provided that, only during the period commencing on the Closing Date and ending on the date that is twelve months following the Closing Date, the total yield (calculated for both the Incremental Term Loans and the Term Loans, including the upfront fees, any interest rate floors and any OID, but excluding any arrangement, underwriting or similar fee paid by the Borrower) in respect of any Incremental Term Loans will not be more than 0.50% higher than the corresponding total yield for the existing Term Loans (it being understood that any such increase may take the form of OID with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), unless the interest rate margins with respect to the existing Term Loans are increased by an amount equal to the difference between the total yield with respect to the Incremental Term Loans and the corresponding total yield on the existing Term Facility minus 0.50% (such adjustment, the “MFN Adjustment”) and (E) the Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in respect thereof) and any Incremental Term Facility shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders thereunder, provided that, in the case of the Incremental Term Loans, to the extent such terms, taken as a whole, are materially more restrictive than the terms relating to the existing Term Facility (except in to the case of customary high-yield bridge loans which, subject to customary conditions extent permitted by clause (including no payment C) or bankruptcy event of default(D) above), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
such terms (Fx) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent, (y) shall only be applicable after the latest maturity date of the then-existing Term Loans or (z) the Lenders of the then-existing Term Loans receive the benefit of such more restrictive terms; provided that each that, the Lenders (including New Lenders) committing to provide Incremental Term Facility shall share ratably in any mandatory prepayments Loans, the proceeds of which are to be used to finance a Permitted Acquisition or Investment, may agree (i) that the satisfaction of the applicable Term Facility unless conditions set forth in the Parent Borrower foregoing clauses (A) and (B) may be tested as of the lenders date that the definitive documentation for such Permitted Acquisition or Investment is executed, (ii) that, with respect to a Limited Condition Acquisition, the reference in clause (A) to a Default or Event of Default shall instead refer to an Event of Default under Section 8(a) or (f) and (iii) with respect to a Limited Condition Acquisition, to waive without the consent of such Incremental Term Facility elect lesser payments;
any other Credit Party the condition set forth in clause (HB). Notwithstanding the foregoing, (i) any Incremental without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments and borrowings of Incremental Term Loans shall not exceed (x) the Revolving Loans in respect thereof shall be pursuant to greater of (x) $100,000,000 and (y) 100% of Consolidated EBITDA for the terms hereof otherwise applicable to period of four full consecutive fiscal quarters of the Revolving Facility and Borrower most recently ended (determined at the time of incurrence of such Indebtedness) (the “Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after Fixed Amount”) plus (y) an amount so long as the Total Leverage Ratio (as determined on a pro forma basis giving effect to such Additional Credit Extension Amendment;
Incremental Facility as though fully borrowed and any other transactions in connection therewith) is not in excess of 4.00:1.00 (Ithe “Incremental Ratio Amount”) (the sum of clauses (x) and (y), the “Incremental Limit”) and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 10,000,000 and (y) no more than five Incremental six Increased Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no . No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects additional bank, financial institution or other entity which, with the consent of the Borrower and, other than with respect to provide Commitments under a Lender, an Incremental Facility Affiliate of a Lender, or an Approved Fund, the Administrative Agent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed conditioned or conditioneddelayed), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.22(a) shall be reasonably satisfactory to the Administrative Agent andexecute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case form of any Incremental Revolving LoansExhibit C, the Issuing Lenders and the Swingline Lender and whereupon such bank, financial institution or other entity (iia “New Lender”) shall become a Lender under for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to the Revolving Facility, each the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche Type or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche Type or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Term SOFR Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Term SOFR Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, Loans of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) The proceeds of the Incremental Facilities shall be used for purposes permitted by Section 6.10.
(e) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Increased Facility Closing Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent and with the Parent Borrower Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased increase, the “New Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”, together with the New Revolving Commitments, the “Incremental Revolving Commitments” and any facility under which ”), by up to an aggregate amount not to exceed $1,000,000,000 for all Incremental Commitments. Each such Incremental Term Loans or Incremental Revolving Commitments are made availablenotice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Facility”)Commitments shall be effective, as applicable, by executing and delivering which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent an Additional Credit Extension Amendment specifying and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (ix) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $10,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment, and (z) any Lender or other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender” or “New Term Loan Lender,” as applicable) to whom any portion of such increase Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Facility Administrative Agent (such approval not to be unreasonably withheld or Facilities involveddelayed), (ii) the applicable Incremental Facility Closing Dateand, (iii) the applicable Borrower(s) and (iv) in the case of Incremental a New Revolving Commitment, the Issuing Bank (each of which approvals shall not be unreasonably withheld), unless such New Revolving Loan Lender or New Term Loans, (w) Loan Lender is an existing Lender. The terms and provisions of any New Revolving Commitments shall be identical to the existing Revolving Commitments; provided that the applicable Incremental Term Maturity Datecommitment fee, (x) upfront and other fees with respect to any New Revolving Commitments shall be determined by the amortization schedule Borrower and the applicable New Revolving Loan Lenders and the applicable arrangement fees with respect to any New Revolving Commitments shall be determined by the Borrower and the applicable arrangers for such Incremental New Revolving Commitments. The terms and provisions of any New Term Loan Commitments and any New Term Loans shall (a) provide that the maturity date of any New Term Loan that is a separate tranche shall be no earlier than the latest Term Loan Maturity Date for any then outstanding tranches of Term Loans and shall not have any scheduled amortization payments, (yb) share ratably in any prepayments of the Applicable Margin for existing Term Loan Facility, unless the Borrower and the New Term Loan Lenders in respect of such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental New Term Loans elect lesser payments and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt(c) other than pricing or maturity date, shall not exceed have the Incremental Cap;
same terms as the then outstanding tranches of Term Loans; provided that applicable interest rate margins, arrangement fees, upfront or other fees, original issue discount and amortization (B) (xsubject to the remaining terms of this proviso) with respect to any Incremental New Term Loan Commitments shall be determined by the Borrower and the applicable New Term Loan Lenders; provided, further, that New Term Loan Commitments may contain (x) additional or more restrictive covenants that are applicable only to periods after the latest Maturity Date of any Term Loans being incurred outstanding or Revolving Commitments in effect immediately prior to finance a Permitted Acquisition or a similar permitted Investment designated by giving effect to such New Term Loan Commitments and (y) other terms that are reasonably acceptable to the Parent Borrower as a “Limited Conditionality Acquisition”Administrative Agent. The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default has occurred shall exist and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (yii) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower recent month for which financial statements have been delivered pursuant to Section 5.01, the Borrower would have been in compliance with the Financial Covenants that are available;
applicable at such time; (Dy) the representations and warranties made or deemed made by the Borrower in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects, respects on the effective date of such Incremental Commitments except and solely to the extent required by that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the lenders providing such Incremental Facility;
Loan Documents; and (Ez) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent; provided that : (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments and (B) if applicable, all corporate, partnership, member, or other necessary action taken by each Incremental Term Facility shall share ratably in any mandatory prepayments of Guarantor authorizing the applicable Term Facility unless the Parent Borrower and the lenders in respect Guaranty by such Guarantor of such Incremental Commitments; and (ii) if requested by the Administrative Agent, a customary opinion of counsel to the Borrower and, if applicable, the Guarantors (which may be in substantially the same form as delivered on the Effective Date and may be delivered by internal counsel of the Borrower), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lenders; provided, that, such Lender shall promptly return any existing Notes held by such Lender to the Borrower (or, if lost, destroyed or mutilated, if requested by the Borrower, a lost note affidavit in customary form and including a customary indemnity). On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to its New Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Facility elect lesser payments;
Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (Hi) any Incremental each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the New Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Commitments and the New Revolving Loans Loan Lenders or the New Term Loan Commitments and the New Term Loan Lenders, as applicable, and (z) in respect thereof the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The upfront fees payable to the New Revolving Loan Lenders and/or New Term Loan Lenders shall be determined by the Borrower and the applicable New Revolving Loan Lenders and/or New Term Loan Lenders. The Incremental Commitments shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by the Borrower, the New Revolving Loan Lender or New Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.04.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Brixmor Operating Partnership LP)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders occasions, by written notice to the Administrative Agent, request the establishment, during the Revolving Availability Period, of Incremental Revolving Commitments, provided that the aggregate amount of all the Incremental Revolving Commitments established hereunder during the term of this Agreement shall not exceed $200,000,000. Each such notice shall specify (including New Lendersi) the date on which the Company proposes that the Incremental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may from time be agreed to time agree that by the Administrative Agent) after the date on which such Lenders shall makenotice is delivered to the Administrative Agent, obtain or increase and (ii) the amount of their the Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “being requested (it being agreed that (A) any Lender approached to provide any Incremental Revolving Commitments” and any facility under which Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Revolving Commitment and (B) any Person that the Company proposes to become an Incremental Revolving Lender, if such Person is not then a Revolving Lender, must be an Eligible Assignee and must be approved by the Administrative Agent, each Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld)).
(b) The terms and conditions of any Incremental Revolving Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Company determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments are or Revolving Loans and other extensions of credit made availablethereunder, an “Incremental Facility”)such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, by executing and delivering shall be increased to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount equal such interest rate or fees payable in respect of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event Revolving Loans and other extensions of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliancecredit made thereunder, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment may be; provided further that the Company, at its election, may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the other Revolving Commitments.
(c) The Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by ▇▇▇▇▇▇ USA, the Borrowers, each Incremental Revolving Lender providing such Incremental Revolving Commitments, the Administrative Agent, each Issuing Bank and the Swingline Lender; provided that no Incremental Revolving Commitments shall become effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such commitments are fully drawnIncremental Revolving Commitments (and assuming that the full amount of such Incremental Revolving Commitments shall have been funded as Loans on such date), no Default shall have occurred and be continuing (disregarding any Default that would arise as a result of any portion of the assumed Borrowings on such date exceeding the Borrowing Base then in effect), (ii) without on the netting date of proceeds effectiveness thereof and any Permitted Acquisition after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made with on such date, the proceeds thereof)), with the financial covenants representations and warranties of each Loan Party set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event Loan Documents shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, except in each case on and solely to the extent required by the lenders providing as of such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (date, except in the case of customary high-yield bridge loans whichany such representation and warranty that expressly relates to a prior date, subject to customary conditions in which case such representation and warranty shall be so true and correct on and as of such prior date, (including no payment or bankruptcy event of default), would either automatically be converted into or iii) the Borrowers shall make any payments required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life made pursuant to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made Section 2.17 in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral connection with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the related transactions under this Section and (iv) ▇▇▇▇▇▇ USA and the Borrowers shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Lender” (and a Lender in respect of Revolving Commitments and Revolving Loans) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Revolving Commitments and Revolving Loans) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Revolving Commitments and Revolving Loans) hereunder and under the other Loan Documents, and (ii) (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure and the Revolving Total Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving Loans in respect thereof shall be pursuant outstanding (the “Existing Revolving Borrowings”) immediately prior to the terms hereof otherwise applicable to the Revolving Facility and effectiveness of such Incremental Revolving Commitments shall become be deemed to be repaid, (ii) each Incremental Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments under this Agreement shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment effectiveness of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and Commitments) multiplied by (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii2) the aggregate amount of each the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant Lender’s Applicable Percentage (calculated without giving effect to the preceding sentence effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Revolving Lender that shall equal the Eurocurrency Rate then applicable not have had a Revolving Commitment prior to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, effectiveness of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on pay to Administrative Agent in same day funds an amount equal to the Closing Date as product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.) multiplied by
Appears in 1 contract
Sources: Credit Agreement (Murphy USA Inc.)
Incremental Facilities. (a) The Parent So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower and/or Representative shall have the right, at any Additional Borrower time and any one or more Lenders (including New Lenders) may from time to time agree after the Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to increase the Existing Revolving Commitments by requesting new Revolving Loan Commitments be added to an Existing Tranche of Existing Revolving Commitments (the “Supplemental Revolving Commitments”), (iv) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”), and (v) to request new letter of credit facility commitments under one or more new letter of credit facilities to be included in this Agreement (the “Incremental Letter of Credit Commitments” and, together with the Incremental Term Loan Commitments, Supplemental Term Loan Commitments, Supplemental Revolving Commitments and the Incremental Revolving Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinancing other Indebtedness), an amount that could then be Incurred under this Agreement in 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 definition of “Maximum Incremental Facilities Amount,” the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such Lenders clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount,” the Borrower Representative shall makehave delivered a certificate to the Administrative Agent, obtain or increase certifying the amount of their the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 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 (in the case of Incremental Commitments 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 case, in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) 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 made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of any Issuing Bank (in each case, such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 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).
(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 (any such increased Revolving Commitments, the “Increase Supplement”) or by each Additional Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an Lender substantially in the form attached hereto as Exhibit I-2 (the “Incremental FacilityLender Joinder Agreement”), as applicablethe case may be, by executing and delivering which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an Additional Credit Extension amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers and each applicable Incremental Lender. An Incremental Commitment Amendment specifying may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower Representative and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount Incremental Commitments will not be guaranteed by any Subsidiary of the 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 committed amountan Other Intercreditor Agreement), if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) the Incremental Commitments and any incremental loans drawn thereunder (xthe “Incremental Loans”) shall rank pari passu in right of payment with respect or (at the Borrower 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 being incurred are outstanding, any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided pursuant to finance such Incremental Commitment Amendment and the 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 Cash Proceeds 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 4.4(e), on more than a Permitted Acquisition or a similar permitted Investment designated by ratable basis with the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or Initial Term Loans (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment amendment in accordance with Subsection 11.1(d)(vii)); (including ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the making maturity date of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Commitment shall be no earlier than, and no Default or Event of Default has occurred and is continuing or scheduled mandatory commitment reduction in respect thereof shall result therefrom;
be required prior to the Initial Revolving Maturity Date; (Civ) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans maturity date and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any such Incremental Term Facility Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Facility Loans, as applicable (except in the case of other than an earlier maturity date and/or shorter weighted average life to maturity for customary high-yield bridge loans financings, which, subject to customary conditions (including no payment or bankruptcy event of default)conditions, would either be automatically be converted into or required to be exchanged for permanent Indebtedness that financing which does not have provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term FacilityLoan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable);
; (Fv) all 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 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 Loans and any Revolving Loans Loan Commitment, made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect on or prior to the 18-month anniversary of the Collateral with 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 Revolving Loans and none Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Lenders in lieu of the obligors or guarantors with respect thereto OID (which shall be a Person that is not a Loan Party;
(Gdeemed to constitute like amounts of OID) except with respect payable by the Borrowers to pricing and fees the Lenders under such Initial Term Loans or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term FacilityLoan 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 consistent issued with a uniform amount of OID or upfront fees within the applicable existing Tranche of Initial Term FacilityLoans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined between on a weighted average basis); (B) any arrangement, structuring or other fees payable in connection with the Parent Borrower and the lenders for Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Facility and reasonably satisfactory Loans shall be excluded; (C) any amendments to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of Applicable Margin on the applicable Initial Term Facility unless Loans that became effective subsequent to the Parent Borrower and Closing Date but prior to the lenders in respect time of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans shall also be included in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 calculations and (yD) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by include an interest rate floor greater than the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent interest rate floor applicable to the initial Revolving Commitments 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 without any further amendment in such case the interest rate floor (but not the Applicable Margin) applicable to this Agreement.such Initial Term Loans shall be increased by such amount; (vi) such Incremental Commitment Amendment may
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders Borrower, by written notice to the Administrative Agent, may request (including New Lendersx) may from time to time agree that such Lenders shall make, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “and/or the establishment of Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying Term Commitments (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (wIncremental Revolving Commitments and the Revolving Loans made thereunder, collectively, the “Incremental Extensions of Credit”) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and or (y) the Applicable Margin for such to incur Alternative Incremental Term LoansFacility Debt; provided, that:
(A) provided that the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving CommitmentsCommitments established hereunder, together with the aggregate principal amount of any Permitted all Alternative Incremental Equivalent DebtFacility Debt and the aggregate amount of all Designated Local Facilities (as defined in the Collateral Agreement) that constitute Secured Cash Management Obligations (as defined in the Collateral Agreement), shall not exceed the Incremental Cap;
(B) sum of (x) with respect $600,000,000, plus (y) the aggregate principal amount of all voluntary prepayments of Term Loans and voluntary prepayments of Revolving Loans to any the extent accompanied by a permanent reduction of the Revolving Commitments (excluding voluntary prepayments of Incremental Term Loans being incurred and Revolving Loans and accompanying Revolving Commitment reductions, in each case, to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”extent obtained pursuant to clause (z) below), no Default or Event of Default has occurred and is continuing as of in each case, made prior to the date of entry into the applicable acquisitionIncremental Extension of Credit) and not funded with the proceeds of Indebtedness, merger or similar agreement governing plus (z) an additional amount, so long as, immediately after giving effect to the incurrence of such acquisition additional amount (but without giving effect to any amount incurred simultaneously in reliance on clauses (x) or (y) otherwiseabove) and the application of the proceeds therefrom, but without netting the proceeds thereof (and assuming that (A) the full amount of such Incremental Extension of Credit or Alternative Incremental Facility Debt has been funded, (B) all Alternative Incremental Facility Debt and each Designated Local Facility designated as Secured Cash Management Obligations constitutes Total First Lien Indebtedness, regardless of whether it satisfies the terms of the definition thereof and (C) assuming that the full amount of all such Designated Local Facilities have been funded), the First Lien Net Leverage Ratio, calculated on a Pro Forma Basis as of the applicable Incremental Facility Activation Datelast day of the most recently ended fiscal quarter, immediately prior is equal to and after giving effect or less than 1.10 to any Additional Credit Extension Amendment 1.00. Such notice shall set forth (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(Ci) the Parent Borrower amount and type of the requested Incremental Commitments and (ii) the date on which such Incremental Commitments are requested to become effective (which shall be in compliancenot less than 10 Business Days or more than 60 days after the date of such notice unless otherwise agreed by the Borrower and the Administrative Agent). Each Incremental Lender, as of any Incremental Facility Activation Dateif not already a Lender hereunder, on a pro forma basis (including giving pro forma effect shall be subject to the applicable Additional Credit Extension Amendment (including approval of the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent to the extent such approval would otherwise be required pursuant to Section 9.04 and, in the case of an Incremental Revolving Lender, each Issuing Bank to the extent such approval would otherwise be required pursuant to Section 9.04 (which approvals shall not be unreasonably withheld or delayed) and each Incremental Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Incremental Commitment and/or its status as a Lender hereunder. No Lender shall be obligated to provide any Additional Credit Incremental Extension Amendment of Credit, unless it so agrees.
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the other Revolving Commitments. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth in the applicable Incremental Facility Agreement with respect to pricing, amortization and maturity, identical to those of the Term Commitments and the Term Loans (and otherwise shall be on terms and subject to conditions reasonably satisfactory to the Administrative Agent); provided that (i) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of any Class of Term Loans, (ii) no Incremental Term Maturity Date shall be earlier than the Latest Maturity Date and (iii) if the Weighted Average Yield relating to any Incremental Term Loans exceeds the Weighted Average Yield relating to the Tranche B Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Agreement by more than 0.50%, then the Applicable Rate relating to the Tranche B Term Loans shall be adjusted so that the Weighted Average Yield relating to such commitments are fully drawnIncremental Term Loans shall not exceed the Weighted Average Yield relating to the Tranche B Term Loans by more than 0.50%; provided, however, that (x) without the netting requirements set forth in this clause (iii) shall not apply to any Incremental Extensions of proceeds thereof Credit the effective date of which is more than 12 months after the Closing Date and (y) any increase in the Applicable Rate required pursuant to this clause (iii) resulting from the application of any interest rate “floor” on any Incremental Term Loan will be effected solely through the establishment or increase of an interest rate “floor” on the Tranche B Term Loans. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Permitted Acquisition Incremental Term Loans made with 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 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) on the date of effectiveness thereof, immediately after giving effect to such Incremental Commitments, no Default shall have occurred and be continuing (provided that if the proceeds thereofof the applicable Incremental Extension of Credit are to be used to finance a Limited Condition Acquisition, then the Incremental Lenders providing such Incremental Extension of Credit may agree to customary “limited conditionality” provisions with respect to the condition set forth in this clause (i)), with (ii) on the financial covenants date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder, as applicable, to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects with respect to such prior date (provided that if the proceeds of the applicable Incremental Extension of Credit are to be used to finance a Limited Condition Acquisition, then the condition precedent set forth in this clause (ii) may be limited to (x) customary specified representations and warranties with respect to the Parent, the Borrower and the Subsidiaries and (y) customary specified acquisition agreement representations and warranties with respect to the Person being acquired), (iii) the Borrower shall make any payments required to be made pursuant to Section 7.12.16 in connection with such Incremental Commitments and the related transactions under this Section, recomputed (iv) after giving effect to the applicable Incremental Extensions of Credit and the application of the proceeds therefrom (and assuming that the full amount of such Incremental Extension of Credit shall have been funded as Loans on such date), (x) the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
Parent, does not exceed the Applicable Total Net Leverage Ratio as of such day and (D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(Ey) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity Cash Interest Expense Coverage Ratio, calculated on a Pro Forma Basis as of the Initial Term Facility last day of the most recently ended fiscal quarter of the Parent, is not less than 3.00 to 1.00 (except in provided that if the case proceeds of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required the applicable Incremental Commitments are to be exchanged for permanent Indebtedness that does not have used to finance a shorter weighted average life to maturity than Limited Condition Acquisition, then the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise condition precedent set forth in this Section 2.25(a)clause (iv) may be required, all terms at the option of any the Borrower, to be satisfied as of the date on which the binding agreement for such Limited Condition Acquisition is entered into, rather than as of the date of effectiveness of such Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between Extension of Credit) and (v) the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory Borrower shall have delivered to the Administrative Agent; provided that each Incremental Term Facility Agent an officer’s certificate to the effect set forth in clauses (i), (ii), (iii) and (iv) above, together with reasonably detailed calculations demonstrating compliance with the immediately preceding clause (iv) and shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of have satisfied all such Incremental Term Facility elect lesser payments;
other conditions (Hif any) any Incremental Revolving Commitments and the Revolving Loans in respect thereof as shall be required pursuant to the terms hereof otherwise applicable to the Revolving Incremental Facility and such Agreement. Each Incremental Revolving Commitments shall become Revolving Commitments under this Facility Agreement after giving effect to such Additional Credit Extension Amendment;
(I) may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the aggregate Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Issuing Lenders Revolving Credit Exposure of the Incremental Revolving Lender holding such Commitment, and the Swingline Lender Applicable Revolving Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, if any Revolving Loans are outstanding, the Borrower (i) shall prepay all Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its option, fund such prepayment by simultaneously borrowing Revolving Loans in accordance with this Agreement, which Revolving Loans shall become a Lender under this Agreement be made by the Revolving Lenders ratably in accordance with their respective Applicable Revolving Percentage (calculated after giving effect to such Incremental Revolving Commitments) provided that such prepayment of Revolving Loans pursuant to an Additional Credit Extension Amendmentthis paragraph shall not be required if such Incremental Revolving Commitments are effected entirely by ratably increasing the Revolving Commitments of the existing Revolving Lenders. The payments made pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to Section 2.16.
(cf) Unless otherwise agreed The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Revolving Percentages of the Revolving Lenders after giving effect thereto and of the prepayments and borrowings required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.23(e).
Appears in 1 contract
Sources: Credit Agreement (American Axle & Manufacturing Holdings Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Company may on one or more Lenders (including New Lenders) may from time occasions after the Closing Date, by written notice to time agree the Administrative Agent, request the establishment of Incremental Commitments; provided that such Lenders shall make, obtain or increase the aggregate amount of their the Incremental Commitments incurred under this Section 2.22 on any date shall not exceed the sum of (x) an amount equal to the Base Incremental Amount in effect on such date, (y) an amount subject to the Maximum Incremental Amount as of such date and (z) an amount equal to the Voluntary Prepayment Amount as of such date (it being understood that (A) the Company shall be deemed to have used amounts under clause (y) above prior to utilization of amounts under clause (x) or (z) above and (B) the proceeds from any such incurrence under such clauses may be utilized in a single transaction by first calculating the incurrence under clause (y) above and then calculating the incurrence under clauses (x) and/or (z) above). Each such notice shall specify (A) whether the Company is requesting Incremental Term Loans Commitments or Revolving Commitments (any such increased Incremental Revolving Commitments, “(B) the date on which the Company proposes that the Incremental Revolving Commitments” and any facility under Commitments shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering notice is delivered to the Administrative Agent and (C) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitments and (y) any Person that the Company proposes to become an Additional Credit Extension Amendment specifying Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee).
(b) The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, substantially consistent to those of the Term Commitments and the Term Loans and, to the extent such terms and conditions are not substantially consistent with the terms and conditions applicable to the Term Commitments and the Term Loans, such terms and conditions shall not be more favorable, taken as a whole, to the Incremental Term Lenders providing such Incremental Term Facility than the terms of the existing Term Commitments and the Term Loans, as applicable (other than with respect to terms and conditions applicable only after the Maturity Date); provided that (i) the amount of such increase upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Company and the Facility or Facilities involvedIncremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) except in the case of an Incremental Term Facility effected as an increase to an existing Class of Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Terms Loans, (iii) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Facility);
Maturity Date and (Fiv) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facilityfor purposes of prepayments (either mandatory or optional), shall be determined between treated substantially the Parent Borrower same as (and in any event no more favorably than) the Initial Term Loans. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Any Incremental Revolving Commitments established pursuant to an Incremental Facility Amendment shall have substantially the same terms as and be deemed to be Revolving Commitments for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder (i) shall be secured by the same Collateral securing the other Loan Document Obligations on a pari passu basis with the Liens on the Collateral securing the other Loan Document Obligations, (ii) shall not be secured by any property or assets of the Company or any of the Subsidiaries other than the Collateral (or property or assets that substantially concurrently become Collateral), unless otherwise permitted by this Agreement, (iii) shall be Guaranteed by the same Loan Parties that Guarantee the other Loan Document Obligations and (iv) shall not be Guaranteed by any Persons other than the Loan Parties, unless otherwise permitted by this Agreement.
(c) The Incremental Term Commitments and Incremental Term Facilities relating thereto and the lenders for Incremental Revolving Commitments shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company, each Incremental Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Credit Extension Amendment;
Incremental Commitments (I) without and assuming that the consent full amount of such Incremental Commitments shall have been funded as Loans on such date); provided that in case of any Incremental Acquisition Term Facility if agreed by all applicable Incremental Term Lenders, the foregoing shall be satisfied if no Event of Default shall have occurred and be continuing on the date of execution of the Administrative Agentapplicable acquisition or investment documentation and no Event of Default under clause (a), (xb), (h) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility or (i) to of Article VII shall have occurred and is continuing on the extent such consent would be required for an assignment effective date of such Incremental Acquisition Term Facility, in each case determined after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditionedon the applicable date), shall be reasonably satisfactory to (ii) on the Administrative Agent anddate of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Revolving LoansAcquisition Term Facility if agreed by all applicable Incremental Term Lenders, the Issuing Lenders Specified Representations and the Swingline Lender Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality or Material Adverse Effect, in all respects and (iiB) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall become be so true and correct on and as of such prior date, (iii) the Company shall be in compliance on a Pro Forma Basis with the financial maintenance covenants set forth in Section 6.13, (iv) the relevant Borrower shall make any payments required to be made pursuant to Section 2.17 in connection with such Incremental Commitments and the related transactions under this Section 2.22 and (v) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and, other than in connection with a Limited Condition Acquisition, consents and approvals and other documents as shall be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.22.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under this Agreement pursuant the other Loan Documents.
(e) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Additional Credit Extension Incremental Term Commitment of any Series shall make an Incremental Term Loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(cf) Unless otherwise agreed by On the Administrative Agentdate of effectiveness of any Incremental Revolving Commitments, on each Revolving Lender of the applicable Class shall assign to each Incremental Facility Closing Date Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Revolving Lender, at the principal amount thereof (together with respect to accrued interest), such interests in the Revolving Facility, each Borrower shall borrow applicable Class of Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency the Dollar Tranche Revolving Commitments, participations in Letters of Credit and Swingline Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and, if applicable, participations in Letters of Credit and Swingline Loans will be held by all of the Revolving Lenders of the applicable Class (including such Incremental Facility Closing Date and (iiRevolving Lenders) ratably in accordance with their Revolving Percentages after giving effect to the aggregate amount effectiveness of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increasedIncremental Revolving Commitments. The Eurocurrency Rate applicable Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed the transactions effected pursuant to the immediately preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)sentence.
(dg) Notwithstanding anything to The Administrative Agent shall notify the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.22(a) and of the Parent Borrower and furnished to effectiveness of any Incremental Commitments in each case advising the other parties heretoLenders of the details thereof.
(eh) The Closing Date If an Incremental Revolving Commitments Term Loan borrowed by a Borrower (other than a Foreign Obligor) hereunder would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, before the close of each accrual period ending after the fifth anniversary of the issue date of such Loan, the applicable Borrower shall be provided make such payments on the Closing Date Incremental Term Loan as required to prevent the Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent Term Loan from being treated as an “applicable to the initial Revolving Commitments and without any further amendment to this Agreementhigh yield discount obligation”.
Appears in 1 contract
Incremental Facilities. (ai) The Parent Borrower and/or any Additional or the Foreign Subsidiary Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering written notice to the Administrative Agent an Additional Credit Extension Amendment specifying elect to request the establishment of one or more additional tranches of term loans (i) the amount of such increase commitments thereto, the “New Term Loan Commitments”), and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing DateParent Borrower or the Foreign Subsidiary Borrower may by written notice to Administrative Agent elect to request the establishment of one or more increases in Series 2013 Revolving Credit Commitments or Series 2016 Revolving Credit Commitments, which may be Series 2013 U.S. Revolving Credit Commitments or Series 2016 U.S. Revolving Credit Commitments (iiithe “New U.S. Revolving Credit Commitments”) or Series 2013 Spanish Revolving Credit Commitments or Series 2016 Spanish Revolving Credit Commitments (the applicable Borrower(s) and (iv) “New Spanish Revolving Credit Commitments” and, together with the New U.S. Revolving Credit Commitments, the “New Revolving Credit Commitments”; the New Revolving Credit Commitments together with the New Term Loan Commitments, collectively, the “New Loan Commitments”), in the case of clauses (a)(i) and (a)(ii) by an aggregate amount not in excess of the Maximum Incremental Term Loans, Facilities Amount in the aggregate from the Restatement Effective Date and not less than $25,000,000 individually (w) the applicable Incremental Term Maturity Date, or such lesser amount as (x) may be approved by the amortization schedule for such Incremental Term Loans and Administrative Agent or (y) shall constitute the Applicable Margin for difference between the Maximum Incremental Facilities Amount and all such Incremental Term Loans; providedNew Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, that:
an “Increased Amount Date”) on which the applicable Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent. The applicable Borrower may approach any Lender or any Person (Aother than a natural person) the aggregate principal amount (or committed amount, if applicable) of to provide all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by portion of the Parent Borrower 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 a “Limited Conditionality Acquisition”, of the applicable Increased Amount Date; provided that (i) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition or (y) otherwiseNew Loan Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (ii) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Series of New Term Loans or Incremental New Revolving Credit Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant theretoto one or more Joinder Agreements executed and delivered by the applicable 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(c) and (b); (iv) the applicable Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, no Default as applicable; and (v) the applicable Borrower shall deliver or Event cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Default has occurred and is continuing or shall result therefrom;New Term Loans for all purposes of this Agreement.
(Ci) On any Increased Amount Date on which New U.S. Revolving Credit Commitments of the applicable Series are effected, subject to the satisfaction of the foregoing terms and conditions, (A) the Parent Borrower shall be in compliance, as of have made arrangements with the Administrative Agent to prepay certain U.S. Revolving Credit Loans on any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect Increased Amount Date pursuant to procedures substantially similar to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants procedures set forth in Section 7.1, recomputed 2.1(h) hereof with such changes as of the last day of the most recently ended fiscal quarter of may be necessary or advisable as may be agreed by the Parent Borrower and the Administrative Agent to give effect to the pro rata borrowing provisions set forth in Section 2.1(b)(iv), and (B) each Lender with a New U.S. Revolving Credit Commitment (each, a “New U.S. Revolving Credit Lender”) shall become a Lender with respect to the U.S. Revolving Credit Commitment of the applicable Series and all matters relating thereto, and each Loan made thereunder (each, a “New U.S. Revolving Credit Loan”) shall be deemed for which financial statements are available;all purposes a U.S. Revolving Credit Loan of the applicable Series.
(Dii) On any Increased Amount Date on which New Spanish Revolving Credit Commitments of the applicable Series are effected, subject to the satisfaction of the foregoing terms and conditions, (A) the Parent Borrower shall have made arrangements with the Administrative Agent to prepay certain Spanish Revolving Credit Loans on any Increased Amount Date pursuant to procedures substantially similar to the procedures set forth in Section 2.1(h) hereof with such changes as may be necessary or advisable as may be agreed by the Parent Borrower and the Administrative Agent to give effect to the pro rata borrowing provisions set forth in Section 2.1(b)(iv), and (B) each Lender with a New Spanish Revolving Credit Commitment (each, a “New Spanish Revolving Credit Lender”, together with the “New U.S. Revolving Credit Lenders”, the “New Revolving Credit Lenders”) shall become a Lender with respect to the Spanish Revolving Credit Commitment of the applicable Series and all matters relating thereto, and each Loan made thereunder (each, a “New Spanish Revolving Credit Loan”, together with the “New U.S. Revolving Credit Loans”, the “New Revolving Credit Loans”) shall be deemed for all purposes a Spanish Revolving Credit Loan of the applicable Series.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in no event an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall it be become a condition Lender hereunder with respect to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty 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 Loan Party be true and correct in all material respectsSeries shall be, except and solely as otherwise set forth herein or in the applicable Joinder Agreement, identical to the extent required existing Series 2018 Extended Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Series 2018 Extended Term Loan Maturity Date and mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the existing Series 2018 Extended Term Loans shall be identical, (ii) the rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the lenders providing such Incremental Facility;
applicable Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that (Ex) the weighted average life to maturity of any Incremental all New Term Facility Loans shall be no earlier shorter than the weighted average life to maturity of the Initial existing Series 2018 Extended Term Facility Loans and (except y) if the Applicable LIBOR Margin or Applicable ABR Margin in respect of the New Term Loans exceeds the Applicable LIBOR Margin or Applicable ABR Margin, as applicable, in respect of the existing Series 2018 Extended Term Loans by more than 0.50%, the Applicable LIBOR Margin or Applicable ABR Margin in respect of the existing Series 2018 Extended Term Loans, as applicable, shall be adjusted to be equal to the Applicable LIBOR Margin or Applicable ABR Margin, as applicable, in respect of the New Term Loans minus 0.50%; provided, further, that in determining the Applicable LIBOR Margin and Applicable ABR Margin, (x) original issue discount or upfront fees (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrowers to the New Term Loan Lenders under the New Term Loans and to the Lenders of the existing Series 2018 Extended Term Loans (calculated in the case of customary highthe Series 2018 Extended Term Loans on a weighted average basis to include all consent fees paid to Series 2018 Extended Term Loan Lenders on the Restatement Effective Date pursuant to Section 7(a) and 7(b) of the Second Amendment) in the initial primary syndication thereof (or, in the case of the Series 2018 Extended Term Loans in connection with the Second Amendment) shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-yield bridge loans which, subject year life to customary conditions (including no payment or bankruptcy event of defaultmaturity), would either automatically provided that for purposes of this clause (x), fees in the nature of arranging fees shall be converted into excluded in any such determination and (y) any amendments to the Applicable LIBOR Margin or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security Applicable ABR Margin in respect of the Collateral with Series 2018 Extended Term Loans that become effective subsequent to the Restatement Effective Date but prior to the time of such New Term Loans shall also be included in such calculations; provided, further, that if the LIBOR Rate (or ABR) in respect of the New Term Loans includes a floor greater than the LIBOR floor (or ABR floor, as applicable) applicable to the Series 2018 Extended Term Loans, such excess amount shall be equated to interest margin for purposes of determining any increase to the Applicable Margin in respect of the Series 2018 Extended Term Loans; and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Series 2018 Extended Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving Credit Loans and the New Revolving Credit Commitments shall be identical to the Revolving Credit Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;Credit Commitments, respectively.
(Ge) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Each Joinder Agreement may, all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.14.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
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Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or after the Closing Date elect to increase the amount of their Incremental Term Loans Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableexisting tranche of) term loans denominated in Dollars (each, an “Incremental FacilityTerm Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments and (y) $20,000,000 (or such lesser amount as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedmay agree), (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansLoans so long as, (w) after giving effect thereto, the applicable Incremental Term Maturity Date, (x) the amortization schedule for aggregate principal amount of all such Increased Commitments and all such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental other than Refinancing Term Loans and Incremental Refinancing Revolving Commitments), together when aggregated with the aggregate principal amount of any Permitted all Incremental Equivalent DebtIndebtedness previously incurred, shall does not exceed the Incremental Cap;
. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (B) (x) with respect each Lender so agreeing to any an increase in its Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loans being incurred to finance a Permitted Acquisition Loan, an “Increasing Lender”), or a similar permitted Investment designated by the Parent Borrower as one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “Limited Conditionality AcquisitionNew Lender”), no Default to increase their existing Revolving Commitment or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisitionExtended Revolving Commitment, merger or similar agreement governing to participate in such acquisition Incremental Term Loan, or (y) otherwiseextend Revolving Commitments or Extended Revolving Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment case may be; provided that each New Lender (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingand, in the case of any Additional Credit Extension Amendment with respect an Increased Commitment, each Increasing Lender) shall be subject to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as approval of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness ofand, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required under Section 9.04 for an assignment of to such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldNew Lender, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank and Swingline Lender (in each case, such consents not to be unreasonably withheld or delayed). Without the consent of any Incremental Revolving LoansLenders other than the relevant Increasing Lenders or New Lenders, the Issuing Lenders this Agreement and the Swingline Lender and (ii) shall become a Lender under this Agreement other Loan Documents may be amended pursuant to an Additional Credit Extension AmendmentAmendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing (but subject to the following provisos), no Increased Commitments or Extended Revolving Commitments or Incremental Term Loans shall be permitted under this paragraph unless (i) on the proposed date of the effectiveness of such increase in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided, that to the extent agreed to by the Lenders providing such Increased Commitments or Incremental Term Loans, as applicable, and the proceeds of such Increased Commitments or Incremental Term Loans, as the case may be, are used to finance a Permitted Acquisition or similar Investment, with respect to the condition set forth in Section 4.02(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.02(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenants contained in Section 6.09 as of the last day of the most recent fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time; provided further that the requirements of this sentence shall not apply in any respect to Incremental Term Loans incurred in connection with the RBI Transactions if (x) the Acquisition Amendments Effective Date (as defined in Amendment No. 1) occurs substantially concurrently with the incurrence of such Incremental Term Loans or (y) such Incremental Term Loans are incurred by the Borrower prior to the consummation of the RBI Acquisition and the proceeds thereof are deposited into customary escrow arrangements reasonably satisfactory to the Administrative Agent pursuant to which such proceeds will be released to the Borrower (I) substantially concurrently with the Acquisition Amendments Effective Date or, (II) in the event the Acquisition Amendments Effective Date has not occurred on or prior to the Outside Date (as defined in Amendment No. 1) to prepay in full such Incremental Term Loans and all accrued interest thereon no later than one Business Day following the Outside Date. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, and shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i) the final scheduled maturity date of any Incremental Term Loans (other than Refinancing Term Loans) shall be no earlier than the Term Loan Maturity Date (or any later date required pursuant to any Additional Credit Extension Amendment that has previously become effective), (ii) the Weighted Average Life to Maturity of such Incremental Term Loans (other than Refinancing Term Loans) shall not be shorter than the then remaining Weighted Average Life to Maturity of the Initial Term Loans (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment that has previously become effective) (except to the extent of amortization of up to 1.00% per annum of the original principal amount for periods where amortization has been eliminated as a result of prepayment of the applicable Term Loans), (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Term Loans in any mandatory prepayment hereunder (except in the case of (a) incurrence of Refinancing Indebtedness in respect thereof and (b) mandatory prepayments with respect to a Class of Incremental Term Loans issued subject to customary escrow provisions that include a mandatory prepayment applicable solely to such Class of Incremental Term Loans if the applicable escrow release event does not occur prior to the specified escrow “outside date”), (iv) the provisions with respect to payment of interest (including any “MFN” provisions), original issue discount and upfront fees shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans, (v) any Class of Incremental Term Loans may contain customary excess cash flow mandatory prepayment provisions; provided that such mandatory prepayments with respect to such Incremental Term Loans shall be made on a no greater than pro rata basis with the then existing Term Loans, (vi) if the Borrower and the lenders providing the relevant Class of Incremental Term Loans agree, such Incremental Term Loans may be Excluded Term Loans, (vii) if the Borrower and the lenders providing the relevant Class of Incremental Term Loans agree, the Additional Credit Extension Amendment providing for such Incremental Term Loans may permit repurchases by, or assignments to, the Borrower or any Restricted Subsidiary of such Incremental Term Loans pursuant to open market purchases or “dutch auctions” so long as (1) no Event of Default shall have occurred and be continuing, (2) the Incremental Term Loans purchased are immediately and automatically canceled, (3) no proceeds from any loan under any revolving credit facility shall be used to fund such assignments or repurchases and (4) the purchasing party shall be required to identify itself and the seller shall make a customary “big boy” representation and (viii) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (vii) above) to the extent not identical to the terms of the then outstanding Term Loans, shall be permitted if reasonably satisfactory to the Administrative Agent (it being agreed that the terms applicable to each Class of Incremental Term Loans contemplated by the Commitment Letter (as defined in Amendment No. 1) and the fee letter referred to therein are satisfactory to the Administrative Agent). The terms of any Increased Commitments shall be the same as those of the Revolving Commitments or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may have a later maturity date than, and pricing and fees different from, those applicable to the Revolving Commitments and Extended Revolving Commitments. For the avoidance of doubt, no Lender shall have any obligation to provide any Increased Commitment or Incremental Term Loan by virtue of this Agreement.
(b) Incremental Term Loans incurred in connection with the RBI Transactions may, at the option of the Borrower, be initially borrowed by an Escrow Borrower in the form of Escrow Incremental Term Loans; provided that (i) such Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or any other Loan Document for any purposes hereof (including, without limitation, for purposes of any financial calculation, the definition of “Obligations”, the definition of “Required Lenders” or Article VII or Section 9.02 hereof) and the obligations with respect thereto shall not be recourse to the Borrower or any Guarantor, in each case, unless and until the Escrow Assumption with respect thereto has occurred, (ii) the Escrow Assumption with respect to any Escrow Incremental Term Loans shall not be permitted unless on the date thereof (and after giving effect thereto) the applicable requirements set forth in subclauses (i) through (viii) in the penultimate proviso to clause (a) above would be satisfied if the Borrower were borrowing such Incremental Term Loans on the date of such Escrow Assumption (subject to the provisions of Section 1.06) and (iii) upon consummation of the Escrow Assumption, such Escrow Incremental Term Loans shall constitute Incremental Term Loans for all purposes hereunder.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect This Section 2.19 shall override any provisions in Section 9.02 to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)contrary.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Cable One, Inc.)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall makeduring the Revolving Availability Period, obtain or increase the amount establishment of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableand/or (ii) the establishment of Incremental Term Commitments, an “provided that the aggregate amount of all the Incremental Facility”)Commitments established hereunder shall not exceed $500,000,000. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by executing and delivering the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent an Additional Credit Extension Amendment specifying and (iB) the amount of such increase and the Facility Incremental Revolving Commitments or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term LoansCommitments, as applicable, being requested (w) the applicable Incremental Term Maturity Date, it being agreed that (x) the amortization schedule for any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loans Commitment and (y) any Person that the Applicable Margin for such Borrower proposes to become an Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amountLender, if applicable) of all Incremental Term Loans such Person is not then a Lender, must be an Eligible Assignee and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall must be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect reasonably acceptable to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assumingAdministrative Agent and, in the case of any Additional Credit Extension Amendment proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with respect to such Revolving Commitments and Loans; provided that (i) the maturity date of any Incremental Revolving Commitments that such commitments are fully drawnshall be no sooner than, but may be later than, the Revolving Maturity Date, (ii) without the netting there shall be no mandatory reduction of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition Incremental Revolving Commitments prior to the effectiveness of, or Borrowing under, Revolving Maturity Date and (iii) the up-front fees applicable to any Incremental Revolving Facility that any representation or warranty of any Loan Party shall be true and correct in all material respects, except and solely to the extent required as determined by the lenders Borrower and the Incremental Revolving Lenders providing such Incremental Facility;
. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Term Commitments and the Term Loans; provided that (Ei) the up-front fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the weighted average life to maturity of any Incremental Term Facility Loans shall be no earlier shorter than the remaining weighted average life to maturity of the Initial Terms Loans and (iii) no Incremental Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically Loan Maturity Date shall be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity earlier than the Initial Term Maturity Date. Notwithstanding the foregoing, the terms and conditions applicable to an Incremental Facility may include additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders providing such Incremental Facility which are applicable only during periods after the latest Maturity Date that is in effect on the date of effectiveness of such Incremental Facility);
(F) all . Any Incremental Term Facilities established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans and any Revolving Loans made in respect thereunder, shall be designated as a separate series (each a “Series”) of Incremental Revolving Term Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall rank be secured by the Collateral on a pari passu in right of payment and right of security in respect of the Collateral basis with the Term Loans other Loan Document Obligations.
(c) The Incremental Commitments and the Revolving Loans and none of the obligors or guarantors with respect Incremental Facilities relating thereto shall be a Person that is not a Loan Party;
(G) except with respect effected pursuant to pricing one or more Incremental Facility Agreements executed and fees or as otherwise set forth in this Section 2.25(a)delivered by the Borrower, all terms of any each Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for Lender providing such Incremental Term Facility Commitments and reasonably satisfactory to Incremental Facilities and the Administrative Agent; provided that each no Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Additional Incremental Commitments and the making of Loans and issuance of Letters of Credit Extension Amendment;
thereunder to be made on such date, (Iii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to such Incremental Commitments and the making of Loans pursuant thereto (and based on the assumption that borrowings are effected in the full amount of any Incremental Revolving Commitments), the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Section 6.12 and Section 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 5.01(b) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the Pro Forma Financial Statements), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (v) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction, including a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (iii) above. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to give effect to the provisions of this paragraph shall Section, provided that to the extent that any term of any such amendment could not be in a minimum amount approved as an amendment of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected this Agreement by the Parent Borrower after Lenders providing such Incremental Commitments voting a single Class without the Closing Date; and
(J) no Lender shall have approval of any obligation other Lender, such amendment will be subject to participate in any increase described in the approval of the requisite Lenders required under this paragraph unless it agrees to do so in its sole discretionAgreement.
(bd) Any New Lender that elects to provide Commitments under Upon the effectiveness of an Incremental Facility Commitment of any Incremental Lender, (i) to the extent such consent would Incremental Lender shall be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not deemed to be unreasonably withhelda “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, delayed or conditioned), and henceforth shall be reasonably satisfactory entitled to all the Administrative Agent andrights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving LoansCommitment, (A) such Incremental Revolving Commitment shall constitute (or, in the Issuing Lenders and event such Incremental Lender already has a Revolving Commitment, shall increase) the Swingline Revolving Commitment of such Incremental Lender and (iiB) the Aggregate Revolving Commitment shall become a be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender under this Agreement pursuant holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to an Additional Credit Extension Amendmentgive effect thereto.
(ce) Unless otherwise agreed On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative AgentAgent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, on in each Incremental Facility Closing Date with respect to case advising the Revolving Facility, each Borrower shall borrow Revolving Loans under Lenders of the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to the conditions set forth in be made pursuant to Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement2.21(e) .
Appears in 1 contract
Sources: Credit Agreement (NCR Corp)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such new or increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, ) by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment Increased Facility Activation Notice specifying (ix) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans Commitments and (y) the Applicable Margin for applicable Increased Facility Closing Date (which shall be a date not less than 10 Business Days after the date on which such Incremental Term Loans; provided, that:
(A) notice is delivered to the aggregate principal amount Administrative Agent (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with such earlier date as shall be agreed by the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
Administrative Agent)); provided that (B) (xi) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Increased Facility Activation Closing Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 10,000,000, (ii) the aggregate amount of Incremental Commitments obtained after the Second Amendment Effective Date pursuant to this Section 2.24 shall not exceed $100,000,000 and (yiii) Incremental Commitments may be made no more than five Incremental Facility Closing Dates two times after the Second Amendment Effective Date (or such greater number as may be selected agreed by the Parent Borrower after the Closing Date; and
(J) no Administrative Agent in its sole discretion). No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (i) to the extent such which consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent shall not to be unreasonably withheld, delayed or conditioned), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be reasonably satisfactory to the Administrative Agent andexecute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the case form of any Incremental Revolving LoansExhibit I-2, the Issuing Lenders and the Swingline Lender and whereupon such bank, financial institution or other entity (iia “New Lender”) shall become a Lender under for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement pursuant to an Additional Credit Extension AmendmentAgreement.
(c) Unless otherwise agreed or otherwise directed by the Administrative Agent, on each Incremental Increased Facility Closing Date with respect to Date, the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Incremental Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Eurodollar Loans, of each Eurocurrency Tranche or Term Benchmark Eurodollar Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche had been borrowed or effected by such Borrower on such Incremental Increased Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche Type or Term Benchmark Eurodollar Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Eurodollar Base Rate applicable to any Eurocurrency Eurodollar Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Eurodollar Base Rate then applicable to the Eurocurrency Eurodollar Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Eurodollar Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)...
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto[Reserved].
(e) The Closing Date Incremental Revolving Commitments It shall be provided on a condition precedent to the Closing Date as availability of any Incremental Revolving Commitments that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to and immediately after giving effect to the making of such Incremental Commitments, subject to (ii) the conditions representations and warranties set forth in Section 5 each Loan Document shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Increased Facility Closing Date immediately prior to and immediately after giving effect to the same extent applicable making of such Incremental Commitments, except to the initial Revolving Commitments extent expressly made as of an earlier date, in which case they shall be so true and without correct as of such earlier date and (iii) the Borrower shall have delivered such legal opinions, board resolutions, secretary’s certificate, officer’s certificate and other documents as shall be reasonably requested by the Administrative Agent in connection with any further amendment to this AgreementIncremental Commitments.
Appears in 1 contract
Incremental Facilities. The Borrower may by written notice to the Administrative Agent elect to request (aA) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time prior to time agree that such Lenders shall makethe Revolving Commitment Termination Date, obtain or an increase to the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased Revolving Commitmentsincrease, the “Incremental Revolving Commitments” and any facility under which such ”) and/or (B) prior to the Tranche B Term Loan Maturity Date, the establishment of one or more new term loan commitments (the “Incremental Term Loans or Loan Commitments”), by an amount not in excess of the sum of (i) $100,000,000 in the aggregate and (ii) an unlimited amount so long as such amount at such time could be incurred without causing the pro forma Consolidated Senior Secured Leverage Ratio to exceed 3.25:1.00 (assuming that (x) the Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans fully drawn and (y) the Applicable Margin cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Indebtedness for purposes of calculating such Consolidated Senior Secured Leverage Ratio); provided that no such Incremental Revolving Commitments or Incremental Term Loans; providedLoan Commitments shall be in an aggregate amount less than $25,000,000 (except as shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $100,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date pursuant to clause (i) above), that:
and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the aggregate principal amount date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Commitments or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Loan Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debtas applicable, shall be effective, which shall be a date not exceed less than 10 Business Days after the Incremental Cap;
date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (x) with respect to any each, an “Incremental Revolving Loan Lender” or “Incremental Term Loans being incurred Loan Lender”, as applicable) to finance a Permitted Acquisition whom the Borrower proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such Incremental Revolving Commitments or Incremental Term Loan Commitments in its sole discretion and any Lender approached to provide all or a similar permitted Investment designated by portion of the Parent Borrower Incremental Revolving Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as a “Limited Conditionality Acquisition”, of such Increased Amount Date; provided that (1) no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger shall exist on such Increased Amount Date before or similar agreement governing after giving effect to such acquisition Incremental Revolving Commitments or (y) otherwiseIncremental Term Loan Commitments, as of the applicable Incremental Facility Activation Date, immediately prior to applicable; (2) both before and after giving effect to any Additional Credit Extension Amendment (including the making of any Series of Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)Loans, no Default or Event each of Default has occurred and is continuing or the conditions set forth in Section 3.02 shall result therefrom;
be satisfied; (C3) the Parent Borrower Holdings shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis compliance (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, calculated in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made accordance with the proceeds thereof)), definition of Consolidated Adjusted EBITDA) with each of the financial covenants set forth in Section 7.1, recomputed 6.07 as of the last day of the most recently ended fiscal quarter Fiscal Quarter, after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the Parent relevant determination period but prior to or simultaneous with the borrowing of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the Borrower for which financial statements are available;
(Dshall make any payments required pursuant to Section 2.18(c) in no event shall it be a condition to connection with the effectiveness of, Incremental Revolving Commitments or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility Loan Commitments, as applicable; (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F6) all Incremental Term Loans other fees and any Revolving Loans made expenses owing in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; provided that (7) such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall share pari passu in the Guarantees and Collateral; and (8) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Facility Loan Lender of any Series shall share ratably make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any mandatory prepayments Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the applicable Term Facility unless the Parent Borrower Borrower’s notice of each Increased Amount Date and the lenders in respect of such Incremental Term Facility elect lesser payments;
thereof (Hy) any the Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments shall become Revolving Commitments under this Agreement after giving effect to and the Incremental Term Loan Lenders of such Additional Credit Extension Amendment;
(I) without the consent of the Administrative AgentSeries, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 as applicable and (yz) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of each notice to any Incremental Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on in each Incremental Facility Closing Date with respect case subject to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined assignments contemplated by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increasedthis Section. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower terms and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term Loans and as set forth in the Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental Revolving Commitments evidenced therebyLoans shall be identical to the Revolving Loans and such Incremental Revolving Loans will be documented solely as an increase to the Revolving Commitments, without any change in terms other than any change that is more favorable to the Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall be empowered to, on behalf of all the Revolving Lenders, execute an amendment to the definitive documentation relating to the Revolving Loans in order to give effect to such a change more favorable to the Revolving Lenders). Any In any event (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the existing Term Loans (except by virtue of amortization or prepayment of such amendment may existing Term Loans prior to such date of determination), (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be effected in writing no shorter than the latest of the final maturity of the existing Term Loans, and (iii) if the “yield” of any relevant Loan exceeds the “yield” on the existing Term Loans by more than 50 basis points, the applicable margins for the existing Term Loans shall be increased to the extent necessary so that the “yield” on such Term Loans is 50 basis points less than the “yield” on such relevant Incremental Term Loans (for purposes of this paragraph “yield” shall be reasonably determined by the Administrative Agent and (w) to include the Parent Borrower and furnished applicable interest rate margin, (x) to exclude arrangement, commitment, structuring or other fees payable to the other parties hereto.
Joint Lead Arrangers (eor their respective Affiliates) The Closing Date in connection with such Loans or to one or more arrangers (or their Affiliates) of any such Loan that are not shared with all Lenders providing such Loans, (y) to include original issue discount and upfront fees paid to the Lenders thereunder (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity), and (z) to include, if the Incremental Revolving Commitments Term Loans include an interest rate floor greater than the applicable interest rate floor under the existing Term Loans, such differential between interest rate floors equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the existing Term Loans shall be provided on the Closing Date as Incremental Revolving Commitmentsrequired, subject but only to the conditions set forth extent an increase in Section 5 to the same extent interest rate floor in the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the initial Revolving Commitments and existing Term Loans shall be increased to the extent of such differential between interest rate floors). Each Joinder Agreement may, without the consent of any further amendment other Lenders, effect such amendments to this AgreementAgreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.24.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or after the Second Restatement Effective Date elect to increase the amount of their Incremental Term Loans Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableexisting tranche of) term loans denominated in Dollars (each, an “Incremental FacilityTerm Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments and (y) $10,000,000 (or such lesser amount as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involvedmay agree), (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower so long as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment Refinancing Term Loans and Refinancing Revolving Commitments) the aggregate principal amount of Increased Commitments or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and to be established or incurred, as applicable, does not exceed the Incremental Cap at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Loans made Commitment or Extended Revolving Commitment, or to participate in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “New Lender”), to increase their existing Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, or extend Revolving Commitments or Extended Revolving Commitments, as the Administrative Agentcase may be; provided that each Incremental Term Facility New Lender (and, in the case of an Increased Commitment, each Increasing Lender) shall share ratably in any mandatory prepayments be subject to the approval of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agentand, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required under Section 9.04 for an assignment of to such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldNew Lender, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank (in each case, such consents not to be unreasonably withheld or delayed). Without the consent of any Incremental Revolving LoansLenders other than the relevant Increasing Lenders or New Lenders, the Issuing Lenders this Agreement and the Swingline Lender and (ii) shall become a Lender under this Agreement other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the date agreed by the Borrower, the Administrative Agent, on Agent and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Incremental Facility Closing Date with respect Lender thereof. Notwithstanding the foregoing (but subject to the Revolving Facilityfollowing proviso), each Borrower shall borrow Revolving Loans under the relevant increased no Increased Commitments or Extended Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency or Incremental Term Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicableshall be permitted under this Section 2.19(a) which would then have been outstanding from such Lender if unless (i) each on the proposed date of the effectiveness of such Type, Eurocurrency Tranche increase in the Revolving Commitments or Term Benchmark Tranche had been borrowed Extended Revolving Commitments or effected by such Borrower on borrowing of such Incremental Facility Closing Date Term Loan, the conditions set forth in paragraphs (a) and (iib) of Section 4.02 shall be satisfied (or waived by the aggregate amount applicable New Lenders or Increasing Lenders) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of each such Typethe Borrower; provided, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant that to the preceding sentence shall equal extent agreed to by the Eurocurrency Rate then applicable to the Eurocurrency Loans Lenders providing such Increased Commitments or Adjusted Incremental Term SOFR Rate for Term Benchmark Loans, as applicable, and the proceeds of such Increased Commitments or Incremental Term Loans, as the case may be, are used to finance a Permitted Acquisition or Investment (other than Investments in (A) cash and Cash Equivalents and (B) any pre-existing and wholly-owned Restricted Subsidiary), with respect to the condition set forth in Section 4.02(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.02(b) shall be limited to an Event of Default under Sections 7.01(a), (b), (h) or (i), (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenant contained in Section 6.09 as of the last day of the most recent fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Sections 5.01(a) or (b) of this Agreement (or, prior to the initial delivery under this Agreement, Section 6.1 of the Amended and Restated Credit Agreement) prior to such time and (iii) if any Incremental Term Loans are incurred pursuant to this Section 2.19 in reliance on clause (a) of the definition of “Incremental Cap” and the proceeds of such Incremental Term Loans will be used to prepay, repay, redeem, retire, purchase, defease or refinance any unsecured Indebtedness of the Parent, any Intermediate Holdco, the Borrower or any Subsidiary, at the time of such incurrence, on a Pro Forma Basis, the Consolidated Senior Secured Leverage Ratio, as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Sections 5.01(a) or (b) of this Agreement (or, prior to the initial delivery under this Agreement, Section 6.1 of the Amended and Restated Credit Agreement), is equal to or less than 2.00 to 1.00. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such ▇▇▇▇▇▇’s pro rata share (after giving effect to any non-ratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Term Benchmark Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the same Eurocurrency Tranche or Additional Credit Extension Amendment providing for such Incremental Term Benchmark TrancheLoans; provided that (i) except with respect to an amount equal to the Maturity Carveout Amount at such time, as applicable (or, until x) the expiration final scheduled maturity date of any Incremental Term Loans shall be no earlier than the then-current Interest Periodlatest maturity date of any Class of Term Loans outstanding on the Second Restatement Effective Date (or any later date required pursuant to any Additional Credit Extension Amendment entered into after the Second Restatement Effective Date that has previously become effective) and (y) the Weighted Average Life to Maturity of any Incremental Term Loans (other than Refinancing Term Loans) shall not be shorter than the longest then remaining Weighted Average Life to Maturity of any Class of Term Loans outstanding on the Second Restatement Effective Date (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment entered into after the Second Restatement Effective Date that has previously become effective), (ii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Term Loans in any mandatory prepayment hereunder (except in the case of (a) incurrence of Refinancing Indebtedness in respect thereof and (b) mandatory prepayments with respect to a Class of Incremental Term Loans issued subject to customary escrow provisions that include a mandatory prepayment applicable solely to such other rate as Class of Incremental Term Loans if the applicable escrow release event does not occur prior to the specified escrow “outside date”), (iii) the provisions with respect to payment of interest (including any “MFN” provisions), original issue discount and upfront fees shall be agreed upon between as set forth in the Parent Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that, other than with respect to any Incremental Term Loans the proceeds of which are to be used by the Borrower to finance, in whole or in part, a Permitted Acquisition or any other acquisition that constitutes an Investment hereunder, if the Effective Yield of any Class of Incremental Term Loans established after the Second Restatement Effective Date (other than Refinancing Term Loans) exceeds the Effective Yield of the Term Loans by more than 50 basis points, then the Applicable Rate for the Term Loans shall be increased to the extent required so that the Effective Yield of the Term Loans is equal to the Effective Yield of such Incremental Term Loans, minus 50 basis points, (iv) any Class of Incremental Term Loans may contain customary excess cash flow mandatory prepayment provisions; provided that such mandatory prepayments with respect to such Incremental Term Loans shall be made on a no greater than pro rata basis with the then existing Term Loans, (v) if the Borrower and the lenders providing the relevant Lender).
Class of Incremental Term Loans agree, the Additional Credit Extension Amendment providing for such Incremental Term Loans may permit repurchases by, or assignments to, the Borrower or any Restricted Subsidiary of such Incremental Term Loans pursuant to open market purchases or “dutch auctions” so long as (d1) Notwithstanding anything to the contrary in this Agreementno Event of Default shall have occurred and be continuing, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent2) necessary to reflect the existence and terms of the Incremental Term Loans purchased are immediately and automatically canceled, (3) no proceeds from any loan under any revolving credit facility shall be used to fund such assignments or repurchases and (4) the purchasing party shall be required to identify itself and the seller shall make a customary “big boy” representation and (vi) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (v) above) to the extent not identical to the terms of the then outstanding Term Loans, shall be permitted if reasonably satisfactory to the Administrative Agent. The terms of any Increased Commitments shall be the same as those of the Revolving Commitments evidenced thereby. Any such amendment or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may be effected in writing by the Administrative Agent have a later maturity date than, and the Parent Borrower pricing and furnished fees different from, those applicable to the other parties heretoRevolving Commitments and Extended Revolving Commitments. For the avoidance of doubt, no Lender shall have any obligation to provide any Increased Commitment or Incremental Term Loan after the date hereof by virtue of this Agreement.
(eb) The Closing Date Incremental Revolving Commitments This Section 2.19 shall be provided on the Closing Date as Incremental Revolving Commitments, subject override any provisions in Section 9.02 to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any On one or more Lenders occasions at any time after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (including New LendersA) may from time an increase to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or existing Revolving Commitments (any such increased increase, the “New Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”, together with the New Revolving Commitments, the “Incremental Revolving Commitments” and any facility under which ”), by up to an aggregate amount not to exceed $400,000,000 for all Incremental Commitments. Each such Incremental Term Loans or Incremental Revolving Commitments are made availablenotice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Facility”)Commitments shall be effective, as applicable, by executing and delivering which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Administrative Agent an Additional Credit Extension Amendment specifying and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (ix) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $20,000,000, (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; 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 increase 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 Facility Administrative Agent (such approval not to be unreasonably withheld or Facilities involveddelayed), (ii) the applicable Incremental Facility Closing Dateand, (iii) the applicable Borrower(s) and (iv) in the case of Incremental a New Revolving Commitment, the Issuing Bank and the Swingline Lender (each of which approvals shall not be unreasonably withheld), unless such New Revolving Loan Lender or New Term LoansLoan Lender is an existing Lender. The terms and provisions of any New Revolving Commitments shall be identical to the existing Revolving Commitments. The terms and provisions of any New Term Loan Commitments and any New Term Loans shall (a) provide that the maturity date of any New Term Loan that is a separate tranche shall be no earlier than the Term Loan Maturity Date and shall not have any scheduled amortization payments, (wb) share ratably in any prepayments of the applicable existing Term Loan Facility, unless the Borrower and the New Term Loan Lenders in respect of such New Term Loans elect lesser payments and (c) otherwise be identical to the existing Term Loans or reasonably acceptable to the Administrative Agent. The effectiveness of any Incremental Term Maturity Date, Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) the amortization schedule for after giving pro forma effect to such Incremental Commitments and, in the case of a New Term Loans Loan Commitment, the borrowings and the use of proceeds thereof, (yi) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing (ii) as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as last day of the applicable Incremental Facility Activation Datemost recent month for which financial statements have been delivered pursuant to Section 5.01, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be would have been in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, recomputed as of 6.12; (y) the last day of representations and warranties made or deemed made by the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects, ) on the effective date of such Incremental Commitments except and solely to the extent required by that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) (on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the lenders providing such Incremental Facility;
Loan Documents; and (Ez) the weighted average life to maturity of any Incremental Term Facility Administrative Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Incremental Commitments; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments and (ii) a customary opinion of counsel to the applicable Term Facility unless the Parent Borrower and the lenders Guarantors (which may be in substantially the same form as delivered on the Effective Date and may be delivered by internal counsel of the Borrower), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lenders. On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to its New Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the New Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect of such Incremental Term Facility elect lesser payments;
thereof (Hy) any Incremental the New Revolving Commitments and the New Revolving Loans Loan Lenders or the New Term Loan Commitments and the New Term Loan Lenders, as applicable, and (z) in respect thereof the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The upfront fees payable to the New Revolving Loan Lenders and/or New Term Loan Lenders shall be determined by the Borrower and the applicable New Revolving Loan Lenders and/or New Term Loan Lenders. The Incremental Commitments shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by the Borrower, the New Revolving Loan Lender or New Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as are consistent with this Section 2.04 and may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionSection 2.04.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Gramercy Property Trust Inc.)
Incremental Facilities. (a) The Parent Borrower and/or may, at any Additional Borrower and any time other than during the Covenant Relief Period, on one or more Lenders occasions on or after the Funding Date pursuant to an Incremental Amendment (including New Lendersi) may from time to time agree that such Lenders shall make, obtain add one or more new Classes of term facilities and/or increase the principal amount of their the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such commitments, “Incremental Term Loans 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 such increased Revolving CommitmentsIncremental Term Facility, “Incremental Facilities”; the commitments thereunder, the “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or the loans thereunder, “Incremental Revolving Commitments are made availableLoans” and any Incremental Revolving Loans, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of together with any Incremental Term Loans, (w“Incremental Loans”) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the in an aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not to exceed the Incremental Cap;Available Amount; Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM provided that,
(Bi) no Incremental Facility may be in an amount that is less than $5,000,000 (xor such lesser amount to which the Administrative Agent may reasonably agree),
(ii) with respect except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Term Loans being incurred Commitment, and the determination to finance a Permitted Acquisition provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Facility or a similar permitted Investment designated by Incremental Loan (nor the Parent Borrower creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a “Limited Conditionality Acquisition”, no Default lender providing all or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making part of any Incremental Term Loans Commitment or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;Loan,
(C) the Parent Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(Giv) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all permitted herein the terms of any Incremental Term Facility, if not substantially consistent with the those applicable to any then-existing Term Loans, must be (x) reasonably acceptable to the Administrative Agent or (y) only applicable to the period after the Latest Maturity Date,
(v) each Incremental Revolving Facility shall have the same terms, other than upfront fees, as the Revolving Facility, ,
(vi) the final maturity date with respect to any Class of Incremental 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 to any prepayment thereof),
(viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined between by the Parent Borrower and the lenders for providing such Incremental Term Facility,
(ix) subject to clause (v) above, the pricing (including interest rate and fees) of any Incremental Facility shall be determined by the Borrower and reasonably satisfactory to the Administrative Agent; provided that arrangers and/or lenders providing such Incremental Facility,
(x) (A) each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any or Incremental Revolving Commitments Facility shall rank (i) on a pari passu basis with or on a junior basis to the Term Loans and the Revolving Loans in respect thereof right of payment and (ii) on a pari passu basis with the Term Loans and Revolving Loans in right of security or shall be pursuant unsecured 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,
(xi) (A) subject to the terms hereof otherwise applicable Section 1.12, no Default or Event of Default shall exist immediately prior to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement or after giving effect to such Additional Incremental Facility, and (B) the representations and warranties of the Loan Parties (or, if agreed to by the lenders thereof, customary “SunGard” representations and warranties) set forth in this Agreement and the other Redline Waldencast - Credit Extension Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM Loan Documents shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date such Incremental Facility becomes effective 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 specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period;
(Ixii) without the consent any Incremental Term Facility shall participate (A) in any voluntary prepayment of the Administrative Agent, (xTerm Loans as set forth in Section 2.11(a) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (yB) no more than five 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 proceeds of any Incremental Facility Closing Dates may be selected used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by the Parent Borrower after the Closing Date; this Agreement, and
(Jxiv) no 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 shall have any obligation 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 participate in any increase described in this paragraph unless it agrees to do so in its sole discretionoutstanding Term Benchmark Loans of the relevant Class and which ends on the last day of such Interest Period.
(b) Any New Lender that elects to provide Incremental Commitments under may be provided by any existing Lender, or by any other eligible assignee (any such other lender being called an “Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheldLender”); provided that, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent (and, in the case of any Incremental Revolving LoansFacility, the each Issuing Lenders and the Swingline Lender and (iiBank) shall become have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.04 for an assignment of Loans to such Incremental Lender, mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender under this Agreement pursuant to an Additional Credit Extension Amendmentby way of assignment.
(c) Unless otherwise agreed Each Lender or Incremental Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of 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 Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM receive, from each Incremental Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (iii) the Administrative Agent, on each behalf of the Incremental Facility Closing Date with respect to Lenders, or the Revolving FacilityIncremental Lenders, each Borrower as applicable, shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to have received the amount of each Type of Loan any fees payable to the Incremental Lenders in respect of such Borrower Incremental Facility or Incremental Loans, (andiv) 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 case imposition of Eurocurrency Loans or Term Benchmark 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 each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if any Incremental Revolving Facility pursuant to this Section 2.20:
(i) each Revolving Lender immediately prior to such Typeincrease will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Borrower Revolving ▇▇▇▇▇▇’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 such Incremental Facility Closing Date and 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 aggregate amount existing Revolving Lenders shall assign Revolving Loans to certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders participate in each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed increase in the Revolving Commitment pursuant to this Section 2.20); it being understood and agreed that the preceding sentence minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall equal the Eurocurrency Rate then applicable not apply to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable transactions effected pursuant to this clause (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lenderii).
(df) 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 Borrower, the Administrative Agent and the relevant Issuing Bank.
(g) The Lenders hereby irrevocably authorize the Administrative Agent to 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 2.20, such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub- Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM Classes, in each case on terms consistent with this Section 2.20 and such other amendments as are described in Section 9.02.
(h) Notwithstanding anything to the contrary in this AgreementSection 2.20 or in any other provision of any Loan Document, each if the proceeds of any Incremental Facility are intended to be applied to finance a Permitted Acquisition or other similar Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(i) This Section 2.20 shall supersede any provision in Section 9.02 to the contrary. Each of the parties hereto hereby agrees that, on each upon the effectiveness of any Incremental Facility Closing DateAmendment, this Agreement shall be amended to as necessary or appropriate, in the extent (but only to the extent) necessary to reflect the existence and terms reasonable opinion of the Incremental Term Loans Administrative Agent and the Borrower to effect the provisions of or Revolving Commitments evidenced therebybe consistent with this Section 2.20. Any such amendment may be effected memorialized in writing by the Administrative Agent and with the Parent Borrower Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lender (other than the Incremental Lenders providing such Incremental Facility), and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Waldencast PLC)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any Borrowers may on one or more Lenders occasions, by written notice to the Administrative Agent, request (including New Lendersi) may from time to time agree that such Lenders shall make, obtain one or increase more increases in the amount of their Incremental Term Loans or the Revolving Commitments of any Class (any each such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made availableincrease, an “Incremental FacilityRevolving Commitment Increase”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, and/or (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case establishment of Incremental Term Loans, (w) Commitments for the applicable U.S. Borrower; provided that the Dollar Equivalent of the aggregate amount of all the Incremental Revolving Commitment Increases and Incremental Term Maturity Date, (x) Commitments to be established hereunder following the amortization schedule for such Incremental Term Loans and (y) Amendment No. 12 Effective Date shall not exceed the Applicable Margin for such Incremental Term Loans; provided, that:
greater of (A) the aggregate principal amount (or committed amount, if applicable) Incremental Base Amount as of all Incremental Term Loans such date and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any assuming that the full amount of such Incremental Revolving Commitment Increases and/or Incremental Term Commitments, and all previously established Incremental Revolving Commitment Increases and Incremental Term Commitments then in effect, shall have been funded as Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”on such date, no Default or Event of Default has occurred and is continuing as of the date of entry into the applicable acquisitionan additional aggregate amount, merger or similar agreement governing such acquisition or (y) otherwisethat, as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect Pro Forma Effect to any Additional Credit Extension Amendment (including the making establishment of any Incremental Revolving Commitment Increases and/or Incremental Term Loans or Incremental Revolving Commitments pursuant thereto)and the use of proceeds thereof, no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower Borrowers shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1Pro Forma Compliance, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower Test Period for which financial statements are available;
have been delivered pursuant to Section 5.01(a) or 5.01(b) (Dor, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements), with a Senior Secured Leverage Ratio that is no greater than 2.50:1.00. Each such notice shall specify (A) in no event the date on which the applicable Borrower proposes that the Incremental Revolving Commitment Increases or the Incremental Term Commitments, as applicable, shall it be effective, which shall be a condition date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the effectiveness ofAdministrative Agent and (B) the amount of the Incremental Revolving Commitment Increase or Incremental Term Commitments, or Borrowing underas applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Facility that any representation Revolving Commitment Increase or warranty of any Loan Party be true and correct Incremental Term Commitment may elect or decline, in all material respectsits sole discretion, except and solely to the extent required by the lenders providing provide such Incremental Facility;
Revolving Commitment Increase or Incremental Term Commitments, (Ey) the weighted average life Borrowers shall not be required to maturity approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the applicable Borrower proposes to become a Lender under any Incremental Term Facility shall be no earlier than the weighted average life to maturity of the Initial Term Facility (except in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment Commitment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Commitment Increase, if such Person that is not then a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a)Lender, all terms of any Incremental Term Facilitymust be an Eligible Assignee and, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent Agent would be required for an assignment of such Loans or Commitments pursuant Commitment to Section 10.6 (such consent not to be unreasonably withheldLender, delayed or conditioned), shall must be reasonably satisfactory acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving LoansCommitment Increase, the if any consent of each Issuing Lenders Bank and the Swingline Lender would be required for an assignment of Revolving Loans or a Revolving Commitment to such Lender, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the same as those of the Revolving Commitments and Revolving Loans of the Class that is being increased and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that any interest margins, commitment fees, pricing and rate floors applicable to any Incremental Revolving Commitment Increase may exceed the interest margins, commitment fees, pricing and rate floors payable with respect to the Revolving Loans and/or Revolving Commitments pursuant to the terms of this Agreement, as amended through the date of such calculation, in which case the Applicable Rate and/or the fee payable pursuant to Section 2.12(a), in each case as in effect for the other Revolving Loans and Revolving Commitments, shall be automatically increased to eliminate such excess (it being understood that additional upfront or similar fees may be payable to the Lenders participating in such Incremental Revolving Commitment Increase without any requirement to pay such amounts to any existing Revolving Lenders). The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be set forth in the applicable Incremental Facility Agreement and shall be identical to those of the Term Commitments and the Term Loans (other than with respect to maturity, amortization, prepayment, fees and pricing, which shall be, subject to the following proviso, determined by the applicable Borrowers and the Lenders thereunder as set forth in documentation to be determined by the Borrowers and reasonably satisfactory to the Administrative Agent); provided that (A) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the longest remaining Weighted Average Life to Maturity of any Class of Term Loans then outstanding, (B) no Incremental Term Loan Maturity Date shall be earlier than the latest Maturity Date then in effect, (C) any Incremental Term Loans may participate in any mandatory prepayment under Sections 2.11(c) and (iie) on a pro rata basis (or on less than pro rata basis), but not on a greater than pro rata basis with the other Term Loans, (D) any Incremental Term Loan shall become a Lender under rank pari passu in right of payment and of security with the Initial Term Loans and shall be secured only by the Collateral securing the Obligations, (E) any Incremental Term Loan shall be denominated in Dollars and (F) any Previously Absent Financial Maintenance Covenant shall be permitted so long as the Administrative Agent shall be given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of all Lenders. Any Incremental Term Commitments established pursuant to an Additional Credit Extension AmendmentIncremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, may be (x) designated as a separate Series of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement or (y) effected as an increase to an existing Class of Term Loans.
(c) Unless otherwise agreed The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the applicable 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 Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Term Commitments or Incremental Revolving Commitment Increases and the making of Loans and issuance of Letters of Credit thereunder to be made on such date;
(ii) 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, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date; provided that in the case of any Incremental Term Loans or Incremental Revolving Commitment Increase used to finance an acquisition permitted hereunder and whose consummation is not conditioned upon the availability of, or on obtaining, third party financing, to the extent the Lenders participating in such Incremental Term Loans or Incremental Revolving Commitment Increase agree, this clause (ii) shall require only customary “specified representations” and “acquisition agreement representations” requested by the applicable Incremental Lenders;
(iii) after giving Pro Forma Effect to the establishment of any Incremental Revolving Commitment Increase or Incremental Term Commitment, the incurrence of any Loans thereunder and the use of the proceeds thereof, and assuming that the full amount of such Incremental Revolving Commitment Increases and/or Incremental Term Commitments shall have been funded as Loans on such date, the Borrowers shall be in Pro Forma Compliance with each Financial Maintenance Covenant, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements);
(iv) the applicable Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Term Commitments or Incremental Revolving Commitment Increase and the related transactions under this Section. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, on each to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Term Commitment or Incremental Revolving Commitment Increase of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment Increase, (A) if the applicable Lender does not already have a Revolving Commitment, such Incremental Revolving Commitment Increase shall constitute the Revolving Commitment of such Lender as provided in the Incremental Facility Closing Date Agreement applicable to such Incremental Revolving Commitment Increase, (B) if the applicable Lender already has a Revolving Commitment, the Revolving Commitment of such Lender shall be increased as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase and (C) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment Increase, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment Increase, the Revolving Exposure of the Revolving Lender making such Incremental Revolving Commitment Increase, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitment Increase, each Revolving Lender shall assign to each Revolving Lender making such Incremental Revolving Commitment Increase, and each such Revolving Lender making such Incremental Revolving Commitment Increase shall purchase from each Revolving Lender, at the principal amount thereof (together with respect accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving FacilityCommitment Increase.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the applicable Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by reference the Administrative Agent of any notice from the applicable Borrower referred to in Section 2.21(a) and of the amount effectiveness of any Incremental Term Commitments, in each Type case advising the Lenders of Loan of such Borrower (the details thereof and, in the case of Eurocurrency Loans or Term Benchmark Loans, effectiveness of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such any Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicableRevolving Commitment Increase, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration Applicable Percentages of the then-current Interest Period, such other rate as shall Revolving Lenders after giving effect thereto and of the assignments required to be agreed upon between the Parent Borrower and the relevant Lendermade pursuant to Section 2.21(e).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Incremental Facilities. On up to four (4) occasions at any time after the Effective Date, the Borrower may by written notice to the Agent elect to request the establishment of one or more new term loan commitments (the “Incremental Commitments”), up to an aggregate amount not to exceed $300,000,000 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 shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the 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 on any Increased Amount Date shall be in the minimum aggregate amount of $25,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an 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 (z) any Lender or other Person that is an Eligible Assignee (each, a “New Term Lender”) to whom any portion of such 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 delayed). The terms and provisions of any Incremental Commitment and any New Term Loans shall (a) The Parent Borrower and/or provide that the maturity date of any Additional Borrower and any one or more Lenders (including New Lenders) may from time to time agree Term Loan that such Lenders is a separate tranche shall make, obtain or increase be no earlier than the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments” and any facility under which such Incremental Term Loans or Incremental Revolving Commitments are made available, an “Incremental Facility”), as applicable, by executing and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, not have a weighted average life that is shorter than the initial Term Loan and not have any scheduled amortization payments, (b) share ratably in any prepayments of the existing Term Facility, unless the Borrower and the New Term Lenders in respect of such New Term Loans elect lesser payments and (c) otherwise be identical to the existing Term Loans or reasonably acceptable to the Agent. The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) the amortization schedule for after giving pro forma effect to such Incremental Term Loans Commitments and the borrowings and the use of proceeds thereof, (yi) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred shall exist and is continuing (ii) as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (y) otherwise, as last day of the applicable Incremental Facility Activation Datemost recent quarter for which financial statements have been delivered pursuant to Section 8.1 or Section 8.2, immediately prior to and after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Default or Event of Default has occurred and is continuing or shall result therefrom;
(C) the Parent Borrower shall be would have been in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Additional Credit Extension Amendment with respect to Incremental Revolving Commitments that such commitments are fully drawn) without the netting of proceeds thereof and any Permitted Acquisition made with the proceeds thereof)), compliance with the financial covenants set forth in Section 7.1, recomputed as of 9.1; (y) the last day of representations and warranties made or deemed made by the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects, ) on the effective date of such Incremental Commitments except and solely to the extent required by that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) (on and as of such earlier date) and except for changes in factual circumstances not prohibited under the lenders providing such Incremental Facility;
Loan Documents; and (Ez) the weighted average life to maturity of any Incremental Term Facility Agent shall be no earlier than the weighted average life to maturity have received each of the Initial Term Facility (except following, in the case of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans form and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Incremental Commitments; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments and (ii) a customary opinion of counsel to the applicable Term Facility unless the Parent Borrower and the lenders 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 any Incremental Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its Incremental Commitment, and (ii) each New Term Lender shall become a Term Lender hereunder with respect to the Incremental Commitment and the New Term Loans made pursuant thereto. The Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect of such thereof the Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof New Term Lenders, subject to the assignments contemplated by this Section. The upfront fees payable to the New Term Lenders shall be determined by the Borrower and the applicable New Term Lenders. The Incremental Commitments shall be effected pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such one or more Additional Credit Extension Amendment;
(I) Amendments executed and delivered by the Borrower, the New Term Lenders and the Agent, and each of which shall be recorded in the Register. Each Additional Credit Extension Amendment may, without the consent of the Administrative Agentany other Lenders, (x) each increase effected pursuant effect such amendments to this paragraph shall be in a minimum amount of at least $50,000,000 Agreement and (y) no more than five Incremental Facility Closing Dates the other Loan Documents as are consistent with this Section 2.14 and may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans necessary or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent andappropriate, in the case opinion of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to effect the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount provisions of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender)this Section 2.14.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Term Loan Agreement (Columbia Property Trust, Inc.)
Incremental Facilities. (a) The Parent Subject to the terms of the NBA Consent Letter in each event, the Borrower and/or any Additional Borrower and any may on one or more Lenders occasions, by written notice to the Agent, request the establishment, during the Availability Period, of Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $125,000,000 during the term of this Agreement. Each such notice shall specify (including New LendersA) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may from time be agreed to time agree that by the Agent) after the date on which such Lenders shall makenotice is delivered to the Agent, obtain or increase and (B) the amount of their the Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitments” and any facility under which Commitment may elect or decline, in its sole discretion, to provide such Incremental Term Commitment and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Agent, which approval shall not be unreasonably withheld or delayed).
(b) The terms and conditions of any Incremental Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and the Loans and other extensions of credit made thereunder; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments are or Loans and other extensions of credit made availablethereunder, an “Incremental Facility”)such increase shall be permitted if the interest rate or fees payable in respect of the other Commitments or Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Commitments or Loans and other extensions of credit made thereunder, as the case may be.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by executing the Borrower, each Incremental Lender providing such Incremental Commitments and delivering to the Administrative Agent an Additional Credit Extension Amendment specifying Agent; provided that no Incremental Commitments shall become effective unless (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of Incremental Term Loans, (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall not exceed the Incremental Cap;
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition or a similar permitted Investment designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as of on the date of entry into the applicable acquisitioneffectiveness thereof, merger or similar agreement governing such acquisition or (y) otherwise, as of the applicable Incremental Facility Activation Date, both immediately prior to and immediately after giving effect to any Additional Credit Extension Amendment such Incremental Commitments (including after giving effect to the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant theretothereunder to be made on such date), no Default or Event of Default has shall have occurred and is continuing or shall result therefrom;
be continuing, (Cii) on the Parent Borrower shall be in compliance, as date of any Incremental Facility Activation Date, on a pro forma basis (including effectiveness thereof and after giving pro forma effect to the applicable Additional Credit Extension Amendment (including the making of any Incremental Term Loans thereunder to be made on such date, the representations and any Incremental Revolving Commitments thereunder warranties of the Borrower set forth in the Loan Documents shall be true and correct (A) in the case of the representations and assumingwarranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any Additional Credit Extension Amendment such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to such Incremental Commitments, the Maximum Available Amount shall not exceed the NBA Debt Limit at such time, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.13 in connection with respect such Incremental Commitments and the related transactions under this Section, and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Revolving Commitments that such commitments are fully drawn) Facility Agreement may, without the netting consent of proceeds thereof any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Permitted Acquisition made with Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the proceeds thereof))rights of, with and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the financial covenants other Loan Documents, and (ii) (A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Exposures and the Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Loans outstanding (the “Existing Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Borrowings, (iv) after the Agent receives the funds specified in clauses (ii) and (iii) above, the Agent shall pay to each Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Borrowings, (v) after the effectiveness of such Incremental Commitments, the Borrower shall be deemed to have made new Borrowings (the “Resulting Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Agent in accordance with Section 7.12.03 (and the Borrower shall deliver such Borrowing Request), recomputed as (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments), and (vii) the Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Borrowings. The deemed payments of the Existing Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.13 if the date of the effectiveness of such Incremental Commitments occurs other than on the last day of the most recently ended fiscal quarter Interest Period relating thereto.
(f) The Agent shall notify the Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to in Section 2.18(a) and of the Parent Borrower for which financial statements are available;
(D) in no event shall it be a condition to the effectiveness of, or Borrowing under, any Incremental Facility that any representation or warranty of any Loan Party be true and correct in all material respects, except and solely to the extent required by the lenders providing such Incremental Facility;
(E) the weighted average life to maturity of any Incremental Term Facility shall be no earlier than Commitments, in each case advising the weighted average life to maturity Lenders of the Initial Term Facility (except in details thereof and of the case Applicable Percentages of customary high-yield bridge loans which, subject to customary conditions (including no payment or bankruptcy event the Lenders after giving effect thereto and of default), would either automatically be converted into or the assignments required to be exchanged for permanent Indebtedness that does not have a shorter weighted average life to maturity than the Initial Term Facility);
(F) all Incremental Term Loans and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party;
(G) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be determined between the Parent Borrower and the lenders for such Incremental Term Facility and reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any mandatory prepayments of the applicable Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Additional Credit Extension Amendment;
(I) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any New Lender that elects to provide Commitments under an Incremental Facility (i) to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 10.6 (such consent not to be unreasonably withheld, delayed or conditioned), shall be reasonably satisfactory to the Administrative Agent and, in the case of any Incremental Revolving Loans, the Issuing Lenders and the Swingline Lender and (ii) shall become a Lender under this Agreement pursuant to an Additional Credit Extension Amendment.
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans or Term Benchmark Loans, of each Eurocurrency Tranche or Term Benchmark Tranche, as applicable) which would then have been outstanding from such Lender if (i) each such Type, Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan or Adjusted Term SOFR Rate for any Term Benchmark Loan, as applicable, borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans or Adjusted Term SOFR Rate for Term Benchmark Loans, as applicable, of the other Lenders in the same Eurocurrency Tranche or Term Benchmark Tranche, as applicable (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Parent Borrower and the relevant Lender2.18(e).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans or Revolving Commitments evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Parent Borrower and furnished to the other parties hereto.
(e) The Closing Date Incremental Revolving Commitments shall be provided on the Closing Date as Incremental Revolving Commitments, subject to the conditions set forth in Section 5 to the same extent applicable to the initial Revolving Commitments and without any further amendment to this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Madison Square Garden Sports Corp.)